ABBREVIATIONS  USED.— a,  affirmed;  c,  criticised;  d,  distinguished;  e,  explained;  /,  followe< 
h,  harmonized  ;  j,  dissenting  opinion ;  /,  limited ;  m,  modified ;  o,  overruled ;  p,  parallel  case ;  q,  qualifiet 
r,  reversed  :  a.  same  case ;  email  figures  at  the  left  of  the  page  number  indicate  the  section  of  the  syllabi 
to  which  the  citation  applies ;  capitals  H.  A.  refers  to  Howard's  Appeal ;  Tr.  Transcript  Appeal ;  K.  Keyei 
S.  N.  Selden's  Notes;  S.  A.  Silvernail  Appeal;  Ab.  D.  Abbott's  Decisions;  A.  D.  American  Decisioni 
A.  R.  American  Reports;  A.  S.  American  State  Reports;  N.  E.  Northeastern;  U.  S.  United  States;  wht 
there  is  no  abbreviation  it  refers  to  New  York  Court  of  Appeals ;  n  refers  to  note;  a,  ft,  c,  d,  e,  etc.,  aft< 
the  page  number,  refers  to  reprint  edition. 


Vol.  J.     NEW  YORK  REPORTS. 


Cited  in  the  following  series: 

U.  8.  Supreme  Court  (US;  LEd, Lawyers'  Edition);  Federal  Reports 
(Fed);  Massachusetts  (Mas);  Connecticut  (Con);  New  Jersey  Law 
(NJL);  New  Jersey  Equity  (NJE)  and  the  Lawyers'  Reports,  Anno- 
tated (LRA)  and  its  Annotation  (n). 

Shows  where  the  decisions  in  this  volume  have  been  cited— where  to  find 
precedents  on  their  subjects  from  the  courts  carrying  most  weight  in  this 
state.  The  ANNOTATIONS  referred  to  (marked  n)  give  a  complete  presenta- 
tion of  authorities  on  the  point  in  question— all  the  law. 

N.  B.— Cut  out  and  stick  each  block  on  page  at  its  head,  or  citations  for 
entire  volume  on  inside  front  cover. 

Always  consult  this  table  before  using  a  case. 


17:25  LRA  118n 
32  LRA  580 
40  LRA  319 

113:1  LRA  817n 
23  LRA  587 

129:12  LRA  50n 

261:124  US  49 
31  LEd  341 
87    Mas    3 
38  NJL  541 

379:161  US  598 
40  LEd  821 
37  NJL  160 
13  LRA  66n 

537:93  US  142 
23  LEd  840 
84  Fed  116 
101  Mas  241 

20:37  Fed  712 
28  LRA  7ar> 

144:1  LRA  3C8n 

274:6  Fed  812 
21  LRA  855n 
31  LRA  62n 
31  LRA  761n 
32  LRA  323n 

386:28  Fed  843 

550:133  US  432 
33  LEd  721 
77  Mas  234 
122  Mas  508 
131  Mas  122 
21  Con  126 
3  LRA  791n 
5  LRA  289n 

173:136  US  206 
34  LEd  518 
25  Fed  837 
101    Mas   7 
128  Mas  409 
151  Mas  421 
13  LRA  196n 
22  LRA  250 
28  LRA  59n 

47:69    US    22 
17  LEd  778 
92   US   515 
23  LEd  740 
109  US  377 
27  LEd  969 
9    Fed   836 
10  Fed  345 
38  Fed  703 
70  Fed  760 
94  Mas  441 
33  Con  530 
44  Con  581 
44  Con  587 
27  NJL  174 
13  LRA  56n 

413:59  Mas  548 
30  NJL  44 

423:53  Fed  10 

290:82  Fed  516 
83   Mas   36 
159  Mas  506 
1  LRA  704n 
4  LRA  540n 
26  LRA  551 
38  LRA  564n 

433:13  LRASlOn 

452:81  Mas  333 
14  NJE  180 

564:150  US  491 
37  LEd  1155 
3  LRA  793 
6  LRA  360n 
11  LRA  648 
11  LRA  803 
15  LRA  59 
19  LRA  444n 

491:72  US  288 
18  LEd  579 
26  NJL  586 

180:7  LRA  603n 
12  LRA  862n 

186:140  Mas  175 

298:9  LRA  167n 

496:23  Fed  352 
8  LRA  21  7n 
13  LRA  !»2n 
20  LRA  49!) 

201:4  LRA  418 
29  LRA  233n 
37  LRA  354n 

206:80  Fed  873 

305:7  Fed  421 
54    Fed    92 
85  Fed  748 
65  Mas  350 
37  LRA  015 
39  LRA  048 

509:20  LRA107n 

515:99  US  654 
25  LEd  489 
43  Fed  358 
4  LRA  841n 
31  LRA  072 
33  LRA  053 

581:3  LRA  409n 
22  LRA  80a 

79:36  NJL  193 
12  LRA  a57n 

214:1  LRA  572u 
2  LRA  177 

586:14  NJE238 

83:13  LRA  269n 
29  LRA  814n 

310:70  Fed  285 

595:107  Mas379 
41  NJE  529 
1  LRA  642n 
5  LRA  281  n 
13  LRA  020u 
23  LRA  120n 

223:15  LRA6S9n 

321:78  Mas  473 
00  Con  421 
26  NJL  91 
35  NJL  525 
12  LRA  727  n 
13  LRA  809 

341:43  NJL  12 
305:53  NJL357 

90:23  LRA  468n 

239:16  LRA314 

96:09    US   737 
17  LEd  769 
62  Fed  725 
40  NJE  166 
1  LRA  192n 
6  LRA  279u 
8    LRA    69n 
8  LRA  446n 
13  LRA  50 
13  LRA  290n 
20  LRA  634n 

240:10  LRA314 

525:1)3   US  383 
23  LEd  921 

242:109  US  617 
27  LEd  1052 
139  US  682 
35  LEd  309 
20  Fed  591 
18  NJE  496 
32  LRA  372 

530:150  Mas  568 

•rative  Pub.  Co. 
tuchcstcr,  N.  Y. 

awyers'  Co-Ope 

371:32  LRA496H 

TheL 

Copyrighted  by 
All  rig  iits  reserved. 

N 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


13 


REPORTS  OF  CASES 


ARGUED   AND   DETERMINED 


COURT    OF   APPEALS 


STATE    OF   NEW-YOfii 


BY  GEORGE  F.  COMSTOCK, 

COUNSELLOR    AT    LAW. 


YOL.  I. 


NEW    YORK: 
BANKS  &  BROTHERS,  LAW   PUBLISHERS, 

No.  1-14  NASSAU  STREET. 

ALBANY:  -175  BROADWAY. 

1859. 


Yj 


The  additional  Notes  and  References 
Entered  according  to  Act  of  Congress,  in  the  year  Eighteen  Hundred  and  Fifty, 

BY  ABRAHAM  W.  LEWIS, 
In  the  Clerk's  Office  of  the  District  Court  of  the  Southern  District  of  New  Yorlc. 


The  additional  Notes  and  References 

Entered  according  to  Act  of  Congress,  in  the  year  Eighteen  Hundred  and 

Fifty-three, 

BY  BANKS,  GOULD  &  CO., 
In  the  Clark's  Office  of  the  District  Court  of  the  Southern  District  of  New  York. 


JUDGES  OF  THE  COURT  OF  APPEALS. 


FREEBORN  G.  JEWETT,  Chief  Judge. 

GREENE  C.  BRONSON,     ) 
ADDISON  GARDINER,        }  Judges. 
CHARLES  H.  RUGGLES,  ) 

SAMUEL  JONES,  "1  Judges  of  the  Supreme  Court,  and 

WILLIAM  B.  WRIGHT,  I  sitting  in  the  Court  of  Appeals 
THOMAS  A.  JOHNSON,  [  from  July  1,  1847,  to  January 
CHARLES  GRAY,  J  1,  1849. 

[3] 


OASES 

REPORTED  IN  THIS  VOLUME. 


Adams  v.  The  People, 173 

Aikin,  Mathcws  v 595 

Allaire,  Whitney  v 305 

American    Exchange    Hank,   Cog- 
gill  v 113 

Anderson,  Schennerhorn  v 430 


B 


Bank  of  Salina,  Henry  v 83 

Bard,  Fort  v 43 

Barron,  The  People  v 386 

Baucus,  Mattison  v 295 

Bingham  v.  Weiderwax, 509 

Bogert  v.  Morse, 377 

Bouchaud  v.  Dias, 201 

Brady  v.  Donnelly, 126 

Brady  v.  McCosker 214 

Brown  v.  Fargo,, 429 

Burkle  v.  Luce, 163 

Burkle  v.  Luce 239 

Butler  v.  Miller, 428 

Butler  v.  Miller 496 


c 


Carhart,  French  v 96 

Cayuga  Co.  Bank  v.  Warden, 413 

Charles  v.  The  People, 180 

Chretien  v.  Doncy, 419 

Clickman  v.  Clickman, 611 

Clickman,  Clickman  v 611 

Coddington  v.  Davis, 186 

Coggill  v.  The  American  Exchange 

Bank, 113 

Conover  v.  The  Mutual  Insurance 

Company  of  Albany, 290 

Coon,  Grover  v 536 

Comes  v.  Harris, 223 


Corning  v.  McCullough, 47 

Covell,  Hillv 522 

Cowell,  Ruckman  v 505 

Crandall,  Wendell  v .    491 


D 


Banks  v.  Quackenbush 129 

Davis,  Coddington  v 181) 

Delamater,  Pierce  v 17 

Deraismcs  v.  The  Merchants'  Mu- 
tual Insurance  Company, 371 

Des  Arts,  Moore  v 359 

Dias,  Bouchaud  v 201 

Dodge  v.  Manning, 298 

Doncy,  Chretien  v 419 

Donnelly,  Brady  v 126 

Doughty  v.  Hope, 79 


Fargo,  Brown  v 4:29 

Felton,  Tcall  v 537 

Floyd,  Rice  v 608 

Fort  v.  Bard, 43 

Frecland,  Gracie  v 228 

French  v.  Carhart, 96 

Farmers'  Loan  and  Trust  Company 
v.  Walworth, 433 


G 


Gardner  v.  Hart, 528 

Gilbert  v.  Wiman, 550 

Gilmore,  Spies  v 321 

Gracie  v.  Freeland, 228 

Grover  v.  Coon, 53  S 


VI 


CASES  REPORTED. 


H 

Halliday,  Noble  v 330 

Hamilton  College  v.  Stewart, 581 

Harper,  Wilkes  v 586 

Harris,  Comes  v 223 

Hart,  Gardner  v 528 

Hart,  Stief  v 20 

Harvey  v.  Olmsted, 483 

Henry  v.  Bank  of  Salina, 83 

Hill  v.  Covell, 522 

Hoes  v.  Van  Hoesen, 120 

Hope,  Doughty  v 79 

Houghtaling  v.  Kilderhouse, 530 

Houston,  Shindler  v 261 


Jackson,  Stagg  v. 206 

Jenks  v.  Smith, 90 

Jewell  v.  Schouten, 241 

Jones,  Vilas  v 274 


K 

Kelsey,  Van  Dewater  y 533 

Kilderhouse,  Houghtaling  v 530 

Kingman,  Sparrow  v 242 

Kingsland,  Spauldingv 426 

Kinney,  Winter  v 365 


Langley  v.  Warner, 606 

Lohman  v.  The  People, 379 

Luce,  Burkle  v , 163 

Luce,  Burkle  v 239 

Lyke,  Van  Leuven  v 515 

Lyme  v.  Ward, 531 


M 

Mallory,  Van  Derheyden  v 452 

Manning,  Dodge  v 298 

Martin  v.  Martin, 473 

Martin,  Martin  v 473 

Martin  v.  Wilson, 240 

Marvin  v.  Seymour, 535 

Mattison  v.  Baucus, 295 

Mathews  v.  Aikin, 595 

Mayor,  &c.  of  New-York  v.  Scher- 

merhorn, 423 

Mayor,  &c.  of  N.  York  Sherman  v.  3 1 6 

McCoskcr,  Brady  v 214 

McCullough,  Corning  v 47 


Merchants'  Mutual  Insurance  Co., 

Deraismes  v 371 

Miller,  Butler  v 428 

Miller,  Butler  v 496 

Mohawk  Bank,  Schermerhorn  v....  125 

Moore  v.  Des  Arts, 359 

Morris,  Taylor  v 341 

Morse,  Bogert  v 377 

Mott  v.  Palmer, 564 

Mutual  Insurance  Company  of  Al- 
bany v.  Conover, 290 


N 

Noble  v.  Halliday, 330 


Olmsted,  Harvey  v 483 


Palmer,  Mott  v 564 

Parmelee,  Worrall  v 519 

People,  Adams  v 173 

Barron  v 386 

Charles  v 180 

Lohman  v 379 


Phillips,  Tilley  v 610 

Pierce  v.  Delamater, 17 

Pitcher,  Ruckman  v 392 

Pitts  v.  Wilder, 525 


Quackenbush,  Danks  v 129 


R 


Ricev.  Floyd, 608 

Ruckman  v.  Cowcll, 505 

Ruckman  v.  Pitcher, 393 


Selden  v.  Vermilya, 534 

Seymour,  Marvin  v 535 

Schermerhorn  v.  Anderson, 430 

Schermerhorn  v.  The  Mayor,  &c.  of 

New- York, 423 

Schermerhorn  v.  Mohawk  Bank,...  125 


CASES  REPORTED. 


vn 


Schoutcn,  Jewell  v 241 

Sherman  v.  The  Mayor  of  N.  York,  316 

Shindler  v.  Houston, 261 

Slado  v.  Warren, 432 

Smith,  Jenks  v 90 

Spaulding  v.  Kingsland, 426 

Sparrow  v.  Kingman, 242 

Spear  v.  Wardell, 144 

Spies  v.  Gilmore, 321 

Stagg  v.  Jackson, 206 

Stewart,  Trustees  of  Hamilton  Col- 
lege v 581 

Stief  v.  Hart, 20 


T 


Taylor  v.  Morris, 341 

Teall  v.  Felton, 537 

Tiller  v.  Phillips 610 


Van  Derheyden  v.  Mallory, 452 

Van  Dewater  v.  K«  sey, 533 


Van  Hoesen,  Hoes  v 120 

Van  Leuven  v.  Lyke, 515 

Vermilya,  Selden  v 534 

Vilas  v.  Jones, 274 


w 

Wai  worth,  Farmers' Loan  and  Trust 

Company  v 433 

Wardell,  Spearv 144 

Ward,  Lyme  v 531 

Warden,  Cayuga  County  Bank  v...  413 

Warren,  Langleyv 606 

Warren,  Slade  v 432 

Weiderwax,  Bingham  v 509 

Weiant,  Wood  v 77 

Wendell  v.  Crandall, 491 

Whitney  v.  Allaire, 305 

Wilder,  Pitts  v 525 

Wilson,  Martin  v 240 

Wilkcs  v.  Harper, 586 

Wiman,  Gilbert  v 550 

Winter  v.  Kinney, 365 

Wood  v.  Weiant 77 

Worrall  v.  Parmelee, 519 


CASES 

ARGUED   AED   DETERMINED 

IN  THE 

COURT  OF  APPEALS 

OF  THE 

STATE  OF  NE W.YORK, 
IN  SEPTEMBER  AND  NOVEMBER  TERMS,  1847. 


d  3 
28 
59 


PIERCE  vs.  DELAMATER. 


Under  the  new  Constitution  of  this  State,  it  is  the  right  and  the  duty  of  a  Judge 
of  the  Court  of  Appeals  to  take  part  in  the  determination  of  causes  brought  up 
for  review  from  a  subordinate  court  of  which  he  was  a  member,  and  in  the 
decision  of  which  he  took  part  in  the  court  below. 

THIS  was  a  writ  of  error  to  the  Supreme  Court ;  and  the 
judgment  was  affirmed  by  the  unanimous  opinion  of  the  Judges. 
After  the  cause  had  been  argued,  and  while  the  Judges  were  in 
consultation  upon  it,  BRONSON  J.  expressed  an  opinion  upon 
his  right  and  duty  to  take  part  in  the  decision,  which  opinion 
he  afterwards  committed  to  writing.  The  case  involved  no 
other  questions  which  seemed  of  sufficient  importance  to  be  re- 
ported. 

BRONSON  J.  Having  acted  as  Chief  Justice  in  the  determi- 
nation of  this  cause  by  the  Supreme  Court,  a  question  has  arisen 
in  my  own  mind,  though  it  was  not  mentioned  at  the  bar,  con- 
cerning my  right  to  take  part  in  the  decision  of  the  cause  by 
this  court.  If  the  right  exists,  it  is  of  course  my  duty  to  act. 

This  is  a  question  of  a  good  deal  of  practical  importance,  as 
not  less  than  four  of  the  present  members  of  the  court  have 
recently  sat  in  other  courts  whose  judgments  may  come  here  for 


18  CASES  IN  THE  COURT  OF  APPEALS. 


Pierce  v.  Delamater. 


review ;  and  from  the  manner  in  which  this  court  is  constituted, 
one-half,  at  the  least,  of  its  members  will  always  be  in  the  like 
condition. 

Under  the  Constitution  of  1821,  the  Chancellor  and  Justices 
of  the  Supreme  Court,  though  members  of  the  court  for  the 
correction  of  errors,  were  forbidden  to  take  part  in  the  af- 
firmance or  reversal  of  their  own  decrees  or  judgments.  (Art. 
5,  §  1.)  This  provision,  with  an  extended  application,  after- 
wards became  a  part  of  the  statute  la^,  as  follows: — "No 
judge  of  any  appellate  court,  or  of  any  court  to  which  a  writ 
of  certiorari  or  of  error  shall  be  returnable,  shall  decide,  or 
take  part  in  the  decision  of  any  cause  or  matter  which  shall 
have  been  determined  by  him  when  sitting  as  a  judge  of  any 
other  court."  (2  R.  S.  275,  §  3.)  The  Constitution  of  1821 
has  been  abrogated ;  and  the  only  question  is,  whether  the 
statute  has  not  been  virtually  repealed.  I  think  it  has.  The 
Constitution  of  1846  confers  the  same  powers  on  all  the  Judges 
of  the  Court  of  Appeals,  and  on  all  the  Justices  of  the  Supreme 
Court,  with  the  single  exception,  that  no  judicial  officer  can 
exercise  his  office  while  under  impeachment.  (Art.  6.)  As 
the  statute  denies  to  a  particular  Judge  or  Justice,  though  not 
under  impeachment,  the  powers  which  may  be  exercised  by 
his  associates,  it  comes  in  conflict  with  the  fundamental  law, 
and  must  of  necessity  be  overthrown.  In  the  case  of  judicial 
officers  deriving  their  authority  from  the  Constitution,  it  is 
settled,  that  the  legislature  cannot  add  any  disqualification  to 
those  which  are  found  in  the  Constitution  itself.  (Lieut.  Gover- 
nor s  case,  2  Wend.  213;  Chancellor  s  case,  6  id.  158.  And 
see  per  Thompson,  J.  and  Kent  Oh.,  J.,  in  Yatcs  V.  The  peo- 
ple, 6  John  408,  416.)  The  principle  is  quite  too  plain  to 
admit  a  serious  doubt  that  it  has  been  properly  settled. 

There  is  nothing  in  the  nature  of  the  thing  which  makes  it 
improper  for  a  Judge  to  sit  in  review  upon  his  own  judgments 
If  he  is  what  a  judge  ought  to  be — wise  enough  to  know  that 
he  is  fallible,  and  therefore  ever  ready  to  learn ;  great  and 
honest  enough  to  discard  all  mere  pride  of  opinion,  and  follow 
truth  wherever  it  may  lead ;  and  courageous  enough  to  ac- 


ALBANY,  SEPTEMBER,  1847. 


Pierce  v.  Delamater. 


knowledge  his  errors — he  is  then  the  very  best  man  to  sit  in 
review  upon  his  own  judgments.  He  will  have  the  benefit  of 
a  double  discussion.  If  right  at  the  first,  he  will  be  confirmed 
in  his  opinion  ;  and  if  wrong,  he  will  be  quite  as  likely  to  find 
it  out  as  any  one  else.  But  I  need  not  labor  to  maintain  a 
principle  which  has  been  fully  established,  by  abrogating  the 
disqualification  in  question,  after  it  had  formed  a  part  of  our 
fundamental  law  for  nearly  three-fourths  of  a  century.  ( Const, 
of  1777,  Art.  32.  Const,  of  1821,  Art.  5,  §1.) 

There  is  another  and  very  decisive  reason  in  favor  of  the 
view  which  I  entertain  of  this  question ;  but  as  the  point  has 
not  been  considered  by  my  brethren,  and  the  matter  stands 
firmly  enough  on  the  ground  already  noticed,  I  shall  proceed 
no  further  with  the  discussion. 

I  am  of  opinion  that  it  is  both  my  right  and  duty  to  take 
part  in  reviewing  the  decisions  of  the  Supreme  Court  while  I 
was  a  member  of  it,  and  shall  act  accordingly. 

All  the  other  members  of  the  Court  concurred  in  the  result 
of  this  opinion ;  and  three  of  them,  to  wit,  JEWETT,  CH.  J., 
who  had  been  a  Justice  of  the  Supreme  Court,  RUGGLES,  J., 
who  had  been  a  Circuit  Judge,  and  JONES,  J.,  who  had  been 
Chief  Justice  of  the  Superior  Court  of  the  city  of  New-York> 
subsequently  took  part  in  reviewing  their  own  decisions  while 
sitting  in  the  several  Courts  which  have  just  been  mentioned. 


20  CASES  IN  THE  COURT  OF  APPEALS. 


Slief  v.  Hart 


STIEF  vs.  HART. 

The  judgment  of  the  Supreme  Court  determining  that  a  Sheriff  holding  an  exe- 
cution against  a  pledger,  may  by  virtue  thereof  take  the  property  pledged  out 
of  the  hands  of  the  plsdgee  into  his  own  possession,  and  sell  the  right  and  in- 
terest of  the  pledger  therein,  affirmed,  the  Judges  being  equally  divided  upon 
the  question. 

After  a  sale  by  the  officer  in  such  a  case,  the  pledgee  is  entitled  to  the  possession 
of  the  property  until  the  purchaser  redeems  it  from  the  pledgee. 

Whenever  a  power  is  given  by  statute,  every  thing  necessary  to  make  it  effectu- 
al, or  requisite  to  attain  the  end  in  view,  is  implied.  Per  JEWETT,  C.  J. 

So  when  the  law  commands  a  thing  to  be  done,  it  impliedly  authorizes  the  perform- 
ance of  all  acts  necessary  to  the  execution  of  the  command.  Per  JEWETT,  C.  J. 

Error  from  the  Supreme  Court.  Stief  brought  replevin 
for  a  quantity  of  caps  and  muffs,  which  the  defendant  as 
Sheriff  of  the  city  and  county  of  New  York,  had  levied  upon 
and  taken  possession  of  under  an  execution  against  the  pro- 
perty of  Ezra  Willmarth,  Jr.  Issue  being  joined,  the  cause 
was  tried  at  the  New  York  Circuit  in  April,  1843.  On  the 
trial  it  was  shewn  that  when  the  Sheriff  took  the  goods,  they 
were  in  possession  of  the  plaintiff  as  a  pledge  for  the  pay- 
ment of  a  note  which  the  plaintiff  held  against  Willmarth. 
The  Circuit  Judge  charged  the  jury  that  a  Sheriff  holding  an 
execution  against  a  pledger  may  by  virtue  thereof  take  the 
property  pledged  out  of  the  hands  of  the  pledgee  into  his  own 
possession,  and  sell  the  right  and  interest  of  the  pledgor 
therein.  To  this  charge  the  plaintiff  cxccptcd.  The  jury 
found  a  verdict  for  the  defendant,  and  the  plaintiff  moved  in 
the  Supreme  Court  for  a  new  trial  upon  a  bill  of  exceptions. 
That  Court  denied  the  motion  and  gave  judgment  for  the  de- 
fendant. 

A.  Taber,  for  Plaintiff  in  error. 
8.  Stevens,  for  Defendant  in  error. 
Points  for  Plaintiff  in  error. 

I.  STIEF  had  such  a  property  in  the  goods,  that  he  could 
have  maintained  trespass  against  the  general  owner,  had  he 


ALBANY,  SEPTEMBER,  1847.  21 


Stief  v.  Hart. 


removed  them  without  Stief  s  consent,  and  before  the  lien  was 
discharged.     (10  Wend.  318.) 

II.  If  trespass  would  lie  against  the  general  owner  for  in- 
terference with  Stief 's  possessory  title,  it  will  lie  against  the 
Sheriff  for  the  same  cause,  unless  the  Sheriff,  by  virtue  of  an 
execution,  can  acquire  a  greater  right  of  control  over,  and  a 
greater  interest  in,  the  property  of  the  execution  defendant 
than  the  latter  himself  has. 

III.  The  2d  Revised  Statutes,  page  366,  sec.  20,  authorizes 
the  "right  and  interest"  of  a  pledger  to  be  sold  on  execution, 
but  does  not  interfere  with  the  rights  of  a  pledgee. 

In  this  property,  the  right  to  the  possession  was  in  Stief, 
and  of  course  the  possessory  title  of  the  general  owner  had 
been  divested,  and  could  not  be  sold ;  yet  the  Sheriff  took  the 
property  from  the  possession  of  Stief,  an  act  which  the  gene- 
ral owner  himself  could  not  do. 

IV.  The  greater  power  includes  the  less ;  and  if  sections 
20  and  23,  as  declared  by  the  Supreme  Court  in  6th  Hill,  484, 
give  the  Sheriff  the  power  to  have  the  property  in  view  when 
sold,  that  power  may,  and  therefore  ought  to  be  exercised  with- 
out removing  the  property  from  the  possession  of  the  pledgee. 
If  the    Sheriff  can   remove,    he    can   also   enter   upon   the 
pledgee's  premises  to  sell,  and  may  advertise  it  to  be  sold 
without  removal,  and  thus  leave  the  rights  of  the  pledgee  un- 
disturbed. 

V.  The  statute  does  not  confer  upon  the  Sheriff  power  to 
remove  the  property,  because, 

1.  At  common  law,  the  Sheriff  could  not  remove  pledged 

property  without  paying  the  lien ;  (Story  on  Bailment, 
238,  sec.  353;)  though  the  "right  and  interest"  of  the 
pledger  could  be  sold  on  execution.  (4  Wend.  292.) 

2.  The  statute,  sees.  20  and  23,  2  K.  S.  367,  does  not  alter, 

but  is  merely  declaratory  of  the  common  law.  (Re- 
visor  s  Notes,  part  3rf,  chap.  6,  title  5,  sees.  17  and  20; 
17  J.  R.  116  ;  14  do.  222.)  Except  that  as  to  the 
power  of  a  Sheriff  to  sell  assigned  or  bailed  goods,  the 


22  CASES  IN  THE  COURT  OF  APPEALS. 

Stief  v.  Hart. 

decisions  were  conflicting.     (5  J.  R.  345 ;  4  Cowen, 
469.) 

8.  If  "personal  property"  in  the  23d  sec.  includes  the 
"right  and  interest"  of  a  pledger  in  the  20th  sec., 
then  the  last  clause  of  the  23d  sec.  must  also  apply  to 
pledged  property,  and  the  Sheriff  who  takes  it  must 
offer  it  for  sale  in  such  "  lots  and  parcels  as  will  bring 
the  highest  price  ;"  whereas  pledged  property  must  be 
sold  in  one  parcel,  and  cannot  be  divided. 

Points  for  Defendant  in  error. 

I.  The  statute  confers  the  right  of  levy  upon  goods  pledged. 
(2  E.  S.  290,  sec.  20,  2d  ed.) 

II.  Personal  property  cannot  be  sold  unless  the  same  be 
present,  and  within  the  view  of  those  attending  the  sale.     (2 
R.  S.  291,  sec.  23,  2d  ed.) 

III.  The  Sheriff  having  the  right  to  levy,  has  the  right  to 
do  all  that  the  law  requires  to  enable  him  to  sell.     (Burrall 
vs.  Acker,  23  Wend.  610 ;  14  J.  R.  352 ;  15  J.  R.  179.) 

IV.  He  had  the  right  therefore  to  remove  the  property  to 
a  place  of  safe  deposit,  and  he  is  not  a  trespasser  for  so  doing. 
(Scrugham  vs.  Carter,  12  Wend.  134 ;  Randall  vs.  Cook,  17 
Wend.  58 ;  Phillips  vs.  Cook,  24  Wend.  395 ;    Waddell  vs. 
Coolc,  2  Hill,  47,  note.) 

RUQGLES,  J.  The  decision  of  the  question  presented  by 
the  exception  in  this  case,  depends  upon  the  construction  of 
the  20th  section  of  2d  Revised  Statutes,  page  366,  taken  in 
connexion  with  sections  18,  19,  21  and  23. 

"  SEC.  18.  Upon  executions  against  the  property  of  a  de- 
fendant, the  officer  shall  levy  upon  any  current  gold  or  silver 
coin  belonging  to  the  defendant,  and  shall  pay  and  return  the 
same  as  so  much  money  collected  without  exposing  the  same 
for  sale  at  auction. 

"  SEC.  19.  Upon  executions  the  officer  may  levy  upon  and 
sell  any  bills  or  other  evidences  ,f  debt  issued  by  any  monied 
corporation,  or  by  the  Government  of  the  United  States,  and 


ALBANY,  SEPTEMBER,  1847.  23 


Stief  v.  Hart. 


circulated  as  money,  which  shall  belong  to  the  defendant  in 
such  execution. 

"  SEC.  20.  When  goods  or  chattels  shall  be  pledged  for  the 
payment  of  money  or  the  performance  of  any  contract  or 
agreement,  the  right  and  interest  in  such  goods,  of  the  person 
making  such  pledge,  may  be  sold  on  execution  against  him, 
and  the  purchaser  shall  acquire  all  the  right  and  interest  of 
the  defendant,  and  shall  be  entitled  to  the  possession  of  such 
goods  and  chattels,  on  complying  with  the  terms  and  condi- 
tions of  the  pledge. 

"  SEC.  21.  No  sale  of  any  goods  and  chattels  shall  be  made 
by  virtue  of  any  execution  unless  previous  notice  of  such  sale 
shall  have  been  given,  six  days  successively,  by  fastening  up 
written  or  printed  notices  thereof,  in  three  public  places  of 
the  town  where  such  sale  is  to  be  had,  specifying  the  time  and 
place  where  the  same  is  intended  to  be  had. 

"  SEC.  23.  JSfo  personal  property  shall  be  exposed  for  sale 
unless  the  same  be  present  and  within  the  view  of  those  at- 
tending such  sale  :  it  shall  be  offered  for  sale  in  such  lots  and 
parcels  as  shall  be  calculated  to  bring  the  highest  price." 

It  will  be  observed,  on  reference  to  the  statute,  that  the 
18th  and  19th  sections  speak  of  a  levy,  and  the  20th  does  not ; 
and  from  this  difference  in  language  it  was  inferred  on  the  ar- 
gument that  the  officer  might  sell  under  the  20th  section  with- 
out making  a  previous  levy.  But  it  will  be  seen  that  the  mode 
of  sale  is  so  regulated  by  the  statute  as  to  require  the  officer 
to  have  the  custody  and  control  of  the  property  sold ;  and 
the  officer  is  therefore  justified  in  making  a  levy,  because  a 
levy  is  necessary  to  a  sale  in  the  manner  directed.  Whenever 
the  law  requires  an  act  to  be  done,  it  authorizes  the  agent  to 
do  what  is  necessary  to  accomplish  it  in  the  mode  pointed  out 
for  its  performance. 

The  23d  section  declares  "  that  no  personal  property  shall 
be  exposed  for  sale  by  the  Sheriff  unless  the  same  be  present 
and  within  the  view  of  those  attending  the  sale."  If  this 
provision  is  applicable  to  cases  arising  under  the  20th  section, 
the  Sheriff  must  have  the  power  to  take  the  goods  into  his 


24  CASES  IN  THE  COURT  OF  APPEALS. 

Stief  v.  Hart. 

custody ;  because  without  it,  he  cannot  produce  the  goods  at 
the  sale. 

It  cannot  "be  seriously  urged  that  the  officer  may  discharge 
his  duty  without  a  levy,  by  advertising  the  goods  to  be  sold  on 
the  premises  of  the  pledgee  for  the  purpose  of  having  them 
within  view  of  the  bidders  there,  while  the  goods  may  be  re- 
moved at  the  pleasure  of  the  pledgee,  beyond  the  reach  of  the 
Sheriff  or  purchaser ;  and  moreover,  if  the  statute  gives  the 
Sheriff  no  authority  to  take  the  goods  for  the  purpose  of  a 
sale,  it  gives  him  none  to  enter  on  the  pledgee's  premises  for 
that  purpose ;  for  the  sale  may  as  well  be  any  where  else  as 
there  unless  it  be  in  connection  with  the  power  to  exhibit  the 
goods  to  the  persons  attending  the  sale. 

In  Bakewell  vs.  Cook,  6  Hill  484,  the  Supreme  Court  de- 
cided this  question,  holding  that  the  23d  section  applied  to 
and  regulated  sales  authorized  by  the  20th  section,  as  well  as 
other  sales  of  personal  property.  Indeed  it  is  impossible  to 
give  to  the  23d  section  any  other  construction,  unless  it  can 
be  shewn  that  the  right  and  interest  of  a  pledger  in  goods 
pledged  is  not  "personal  property."  These  words  are  used 
in  the  23d  section,  and  have  a  well  settled  meaning.  They 
embrace  not  only  goods,  chattels,  coin,  bills  and  evidences  of 
debt,  but  in  their  strict  and  more  appropriate  legal  definition 
signify  the  right  and  interest  of  the  owner  or  owners  in  these 
articles.  "  Property"  is  defined  by  Jacob,  in  his  Law  Diction- 
ary, to  be  "  the  highest  right  a  man  can  have  to  any  thing ; 
being  used  for  that  right  which  one  hath  in  lands  or  tene- 
ments, goods  or  chattels,  which  no  way  depends  on  another 
man's  courtesy."  In  Morrison  vs.  Semplc,  6  Bin.  94,  Chief 
Justice  Tilghman  said,  "that  property  signified  the  right  or 
interest  which  one  has  in  lands  or  chattels,  and  that  it  was 
used  in  that  sense  by  the  learned  and  unlearned,  by  men  of 
all  ranks  and  conditions ;"  and  in  Jackson  vs.  JIouscl,  17 
Johns.  Hep.  283,  Chief  Justice  Tilghman's  definition  is  cited 
and  approved  by  the  late  Chief  Justice  Spencer.  In  that 
case  and  in  the  case  of  Wall  vs.  Langlands.  14  East  370,  it 
was  held  that  a  devise  by  a  testator  of  all  his  "  property" 


ALBANY,  SEPTEMBER,   1847.  25 


Stiefv.  Hart. 


passed  his  whole  real  and  personal  estate,  and  comprehended 
all  he  was  worth.  The  words  "  general  property r,"  and  "  spe- 
cial property"  are  constantly  used  in  the  books  to  denote,  not 
the  chattel  itself,  but  the  different  interests  which  several  per- 
sons may  have  in  it.  Indeed  the  revisers  could  not  have  se- 
lected, and  the  language  does  not  afford  words  better  adapted 
to  apply  to  and  embrace  every  thing  mentioned  in  the  19th 
and  20th  sections  of  the  statute  as  the  subjects  of  sale  than 
the  words  "personal  property"  used  in  the  23d  section.  If 
the  words  goods  and  chattels  had  been  used  in  the  23d  section, 
they  would  have  afforded  far  more  ground  for  doubt,  because 
they  are  less  comprehensive  in  their  meaning.  But  even  then 
a  liberal  construction  would  make  them  applicable  to  the  sales 
mentioned  in  the  19th  and  20th  sections,  because  the  things 
pledged  are  in  fact  sold  subject  to  the  redemption  of  the 
pledge.  They  are  used  in  the  21st  section,  which  directs  a 
six  day  notice  of  sale ;  and  if  the  plaintiff  in  error  can  be 
supposed  to  have  shewn  that  the  officer  may  sell  the  defend- 
ant's interest  in  goods  pledged  without  producing  the  goods 
at  the  sale,  he  has  shewn  by  stronger  reason  that  the  sale  may 
be  made  without  notice  ;  because  if  the  words  "  personal  pro- 
perty" do  not  include  the  thing  to  be  sold,  the  words  "goods 
and  chattels"  certainly  do  not :  and  yet  no  one  can  doubt  that 
the  Legislature  intended  that  sales  under  the  20th  section 
should  be  regulated  by  the  21st. 

Before  the  20th  section  was  enacted,  debtors  had  it  in  their 
power  to  place  their  goods  beyond  the  reach  of  their  creditors 
by  pledging  them  for  the  payment  of  a  debt  not  equal  to  their 
value.  This  was  doubtless  the  fraud  alluded  to  by  the  Revi- 
sers in  their  note  to  this  section.  (3  H.  8.  727.)  "  It  is 
submitted,"  say  they,  "that  the  opportunity  thus  given  to 
fraud  and  to  the  injury  of  creditors,  should  be  avoided."  Pub- 
lic sales  of  personal  property  not  within  view  of  the  bidders 
at  the  sale  were  declared  void  by  judicial  decisions  on  the 
plainest  grounds  of  public  policy  before  the  revised  statutes 
were  passed.  (Linnendoll  vs.  Doe  and  TcrJiune,  14  Johns. 
222  ;  Sheldon  vs.  Sopcr  id.  352  ;  Crcsson  vs.  /Stout,  17  Johns. 


20  CASES  IN  THE  COURT  OF  APPEALS. 


Stief  v.  Hart. 


116.)  The  first  part  of  the  23d  section  is  declaratory  of  the 
law  as  it  was  previously  established  in  these  cases.  The  sale 
of  personal  property  without  having  it  within  the  view  of  the 
bidders  for  the  purpose  of  ascertaining  and  estimating  its  value, 
was  an  intolerable  abuse  of  the  process  of  the  courts.  They 
struck  it  down  the  moment  it  appeared,  without  waiting  for  a 
statute.  The  plaintiff's  construction  of  the  20th  section, 
would  set  it  up  again ;  and  not  only  so,  but  would  render  the 
statute  ineffectual  for  the  prevention  of  the  frauds  alluded  to 
by  the  revisers.  Where  there  is  a  collusive  understanding  be- 
tween the  pledgor  and  the  pledgee  of  property  not  having  an 
uniform  quality  and  value  in  the  market,  (such  for  instance  as 
horses,  books,  pictures,  &c.,)  th3  execution  creditor  could  have 
no  hope  of  selling  the  goods  for  their  value  unless  they  were 
exhibited  at  the  sale,  or  in  some  way  submitted  to  the  exami- 
nation of  the  purchasers  ;  and  where  there  was  no  such  collu- 
sion, the  sale  without  viewing  the  goods  would  be  oppressive 
and  injurious  both  to  the  pledgor  and  the  execution  creditor. 
The  removal  or  concealment  of  the  goods  by  the  pledgee  would 
give  him  an  advantage  at  the  sale  over  all  others,  and  would 
enable  him  to  buy  at  the  sale  at  a  merely  nominal  price. 

It  may  be  necessary  in  the  case  of  goods  pledged  to  have 
them  produced  at  the  sale  for  the  purpose  of  selling,  in  lots 
or  parcels,  according  to  the  latter  branch  of  the  23d  section ; 
for  it  may  frequently  happen  that  the  sale  of  a  part  of  the 
goods,  if  they  are  in  view  of  the  buyers,  may  be  sufficient  to 
satisfy  the  pledge ;  and  in  such  case  the  residue  should  be 
divided  and  sold  in  the  ordinary  way. 

The  purchaser  ought,  moreover,  to  have  the  opportunity  at 
the  sale  of  complying  with  the  terms  and  conditions  of  the 
pledge,  and  of  taking  possession  of  the  property.  This  just 
advantage  he  loses,  if  the  goods  are  not  produced. 

It  was  urged  on  the  argument  that  the  terms  "  personal  pro- 
perty," in  the  23d  section,  could  not  have  been  used  in  the 
sense  here  ascribed  to  them  ;  first,  because  the  removal  of  the 
goods  by  the  officer  interferes  with  the  pledgee's  right  of  pos- 
session ;  and  secondly,  because  the  Sheriff  in  taking  the 


ALBANY,  SEPTEMBER,  1847.  27 


Stief  v.  Hart. 


pledged  goods  exercises  over  them  a  greater  power  and  con- 
trol than  the  pledger  himself  could  lawfully  exercise. 

The  first  answer  to  these  suggestions  has  been  already 
given.  It  is  that  the  23d  section,  by  appropriate  language, 
subjects  the  sale  of  pledged  goods  to  the  same  regulations 
which  prevail  in  other  cases ;  and  we  are  not  at  liberty  to  diso- 
bey the  statute.  The  Legislature  has  an  undoubted  right  to 
confer  the  authority  on  the  officer  for  the  purpose  of  enabling 
him  to  execute  the  writ  in  such  manner  as  to  prevent  fraud 
where  it  exists  between  the  pledger  and  pledgee,  and  to  pro- 
tect the  rights  of  creditors.  If  the  pledge  in  this  case  has 
been  made  before  the  law  was  enacted,  a  question  might  arise 
as  to  its  retrospective  operation.  But  whether  the  contract 
on  which  the  execution  issued  was  made  before  or  after  the 
goods  were  pledged,  is  of  no  importance,  because  the  pledgee 
took  the  goods  subject  to  a  pre-existing  regulation  for  the  bene- 
fit of  the  creditors  of  the  pledger,  prior  or  subsequent,  re- 
quiring the  goods  to  be  present  at  the  sale.  The  control 
exercised  by  the  officer  over  the  property  of  the  pledgee,  in 
taking  temporary  possession  of  the  pledged  goods  for  the  pur- 
pose of  a  sale,  is  not  so  great  as  that  which  is  exercised  by 
the  officer  in  the  case  of  partners  and  part  owners,  at  common 
law,  according  to  the  modern  decisions.  In  the  case  of  part- 
ners, it  is  true,  there  is  no  exclusive  right  of  possession  in 
either  one  of  them,  as  in  the  case  of  the  pawnee  of  goods ; 
but  where  one  partner  has  exclusive  possession  in  fact,  the 
other  is  not  at  liberty  to  use  force  to  deprive  him  of  the  ad- 
vantage which  that  possession  gives  ;  and  if  violence  be  used 
for  that  purpose  by  the  partner  out  of  possession,  he  is  an- 
swerable, civilly  and  criminally,  for  all  the  injury  which  results 
from  it.  But  under  an  execution  against  the  property  of  the 
partner  out  of  possession,  the  officer  is  armed  with  an  authori- 
ty which  that  partner  has  not,  namely,  the  authority  to  seize 
the  partnership  goods  in  the  hands  of  the  other  partner,  and 
to  use  force  if  necessary  to  take  them  into  his  custody ;  and 
fchat  not  merely  for  the  temporary  purpose  of  effecting  a  sale 
and  then  restoring  the  possession,  as  in  the  case  of  goods 


28  CASES  IN  THE  COURT  OF  APPEALS. 


Sticf  v.  Hart. 


pledged ;  but  the  Sheriff  is  authorized  to  deliver  the  posses- 
sion to  the  purchaser,  thus  putting  it  beyond  the  reach  of  him 
from  whom  he  took  it.  (2  Hill  47,  Waddell  vs.  Cook,  3  De- 
nio  125 ;  Walsh  vs.  Adams.)  So  the  Sheriff  may  enter  the 
premises  of  a  stranger  against  his  will  to  take  the  goods  of  the 
debtor  which  happen  to  be  there,  although  the  debtor  himself 
would  be  a  trespasser  in  doing  so.  In  these  cases  the  Sheriff 
is  justified,  because  he  could  not  otherwise  satisfy  the  exigency 
of  the  writ,  to  do  which  he  is  clothed  with  lawful  authority, 
and  bound  by  his  duty.  When  the  law  authorizes  an  act,  and 
nothing  is  done  but  what  is  necessary  to  accomplish  it,  those 
who  perform  it  are  not  trespassers.  (14  Mass.  Rep.  27,  Wil- 
liams vs.  Amory.) 

The  prevention  of  frauds,  and  the  protection  of  the  rights  of 
the  creditors  of  the  pawner  of  goods,  could  not  have  been  ef- 
fectually accomplished  in  any  other  way  than  by  subjecting 
sales  such  as  that  in  question,  to  the  same  regulations  as  exist 
in  other  cases  of  personal  property.  We  are  not  to  presume 
that  the  power  of  the  officer  will  be  oppressively  exercised. 
The  possession  of  the  pledgee  will  seldom  be  actually  disturbed; 
and  if  it  be  interrupted  the  interference  will  commonly  lead  to 
the  satisfaction  of  the  pledge.  But  if  it  should  not,  the  pro- 
bable injury  to  the  pawnee  of  the  goods  is  not  to  be  compared 
with  the  evil  which  is  likely  to  result  from  a  sacrifice  of  the 
value  of  goods  by  a  sale  at  which  the  purchaser  cannot  know 
the  quality  or  value  of  the  article  lie  buys,  or  where  to  find 
it  when  bought. 

I  am  in  favor  of  affirming  the  judgment  of  the  Supremo 
Court. 

JEWETT,  Ch.  J.  At  common  law  goods  pawned  or  pledged 
are  not  liable  to  be  taken  in  execution  in  an  action  against  the 
pawner  or  pledger.  (  Wilkes  vs.  Ferris,  5.  John  Hep.  336; 
Marsh  vs.  Lawrence,  4  Cow.  R,  461 ;  Badlam  vs.  Tucker,  1 
Pick.  389;  Pomroy  vs.  Smith,  17,  Pick.  85;  Story  on  Bail. 
§  353,  and  so  the  principle,  was  understood  by  the  revisers,  of 
our  Revised  Statutes,  3  11.  8.  727,  note  under  §20.  Scott  vs. 


ALBANY,  SEPTEMBER,  1847.  29 


Stief  v.  Hart. 


ScJioley  8.  East  467 ;  Metcalf  vs.  Scholey  5.  Bos.  £  Pull. 
461.  Srodes  vs.  Oaven,  3.  Watts,  R.  258  ;  TPafeo/i's  Sheriff 
181.) 

It  is  only  by  Statute  that  the  right  and  interest  of  the 
pawner  or  pledger  of  goods  and  chattels,  can  be  reached  by 
execution  against  such  person.  2.  R.  S.  366.  §  20.,  enacts 
that  "when  goods  or  chattels  shall  be  pledged  for  the  payment 
of  money,  or  the  performance  of  any  contract  or  agreement, 
the  right  and  interest  in  such  goods,  of  the  person  making 
such  pledge,  may  be  sold  on  execution  against  him,  and  the 
purchaser  shall  acquire  all  the  right  and  interest  of  the  defend- 
ant and  shall  be  entitled  to  the  possession  of  such  goods  and 
chattels,  on  complying  with  the  terms  and  conditions  of  the 
pledge." 

The  23rd  Sec.  of  this  Statute  declares  that  no  personal 
property  shall  be  exposed  for  sale,  unless  the  same  be  present, 
and  within  the  view  of  those  attending  such  sale.  If  the  case 
of  Bakewell  vs.  Ellsworth  (6  Hill  484)  was  correctly  decided  it 
is  admitted,  that  it  must  govern  the  decision  of  the  case  at 
bar.  It  is,  hoAvever,  insisted  here  as  it  was  there,  that  al- 
though the  Sheriff  was  authorized  by  the  20th  Sec.  to  sell 
the  "  right  and  interest"  of  the  pledger  on  execution  against 
him,  yet  the  Statute  has  not  conferred  any  authority  on  him 
to  seize  or  take  into  his  possession  the  property  in  the  hands 
of  the  pledgee  preparatory  to  such  sale ;  that  the  Sheriff 
should  exercise  the  power  to  sell  without  taking  possession  of 
or  removing  the  property  from  the  possession  of  the  pledgee ; 
that  the  term  personal  property  in  the  23rd  Sec.  did  not 
apply  to  or  include  the  "  right  and  interest"  mentioned  in 
the  20th  Sec.,  and  that  therefore  a  sale  could  legally  and 
properly  be  made  by  the  Sheriff  of  such  right  and  interest, 
without  the  property  being  present  and  within  the  view  of  the 
persons  attending  the  sale. 

It  was  admitted  on  the  argument  that  if  the  sale  of  such 
right  and  interest  is  within  the  23rd  Sec.,  that  the  Sheriff 
could  not  sell  unless  the  property  was  present  and  within  the 
view  of  those  attending  such  sale.  If,  therefore,  the  Sheriff 


30  CASES  IN  THE  COURT  OF  APPEALS. 

Stief  v.  Hart. 

has  no  right  to  take  into  his  possession  the  property  on  making 
a  levy,  to  hold  until  he  makes  a  sale  of  such  right  and  interest 
and  a  sale  cannot  take  place  unless  the  property  he  present  at 
the  time  and  place  of  sale,  it  is  obvious  that  such  sale  must 
depend  upon  the  mere  volition  of  the  pledgee  to  produce  and 
exhibit  it  at  the  time  and  place  of  sale ;  an  absurdity  which  I 
think  ought  not  to  be  ascribed  to  the  legislature  in  framing 
the  Statute.  I  agree  with  the  Supreme  Court  in  the  con- 
struction of  this  Statute  and  the  course  of  procedure  which 
the  Sheriff,  under  such  circumstances,  is  authorized  and  re- 
quired to  adopt,  as  stated  in  the  case  referred  to. 

The  right  of  the  Sheriff  to  take  and  hold  the  goods  prepara- 
tory to  a  sale  of  such  right  and  interest  arises  by  necessary 
implication  from  the  provisions  of  the  statute  referred  to. 
Whenever  a  power  is  given  by  statute,  every  thing  necessary 
to  making  it  effectual,  or  requisite  to  attain  the  end,  is  implied. 
(1.  Kent's  Com.  464.,  5.  Ed.]  So  where  the  law  commands 
a  thing  to  be  done,  it  authorises  the  performance  of  whatever 
may  be  necessary  for  executing  its  commands.  (Foliamb'a 
Case  5,  Coke  116).  I  am  of  opinion  that  the  judgment  be 
affirmed  with  double  costs.  (2.  R.  8.  618,  §33). 

GARDINER,  J.  The  20th  Section,  2  R.  S.  367,  declares  that 
when  goods  or  chattels  shall  be  pledged  for  the  payment  of 
money,  or  for  the  performance  of  any  contract  or  agreement, 
the  right  and  interest  in  such  goods  of  the  person  making  such 
pledge,  may  be  sold  upon  execution  against  him,  and  the  pur- 
chaser shall  acquire  all  the  right  and  interest  of  the  defendant, 
and  shall  be  entitled  to  the  possession  of  such  goods  and 
chattels,  on  complying  with  the  terms  and  conditions  of  the 
pledge. 

The  23d  Section  provides,  that  no  personal  property  shall 
be  exposed  for  sale,  unless  the  same  be  present  and  within 
the  view  of  those  attending  such  sale :  it  shall  be  offered  for 
sale  in  such  lots  or  parcels  as  shall  be  calculated  to  bring  the 
highest  price. 

In  Bakewell  vs.  Ellsworth,  6  Hill  485,  it  was  said  by  the 


ALBANY,  SEPTEMBER,  1847.  31 


Stief  v.  Hart. 


Supreme  Court,  "That  the  term  personal  property  in  the  23d 
section  is  synonymous  with  the  words  right  and  interest  in  the 
20th  section." 

Whether  this  is  the  true  construction  of  the  statute,  is  the 
sole  question  in  this  case  as  it  was  in  the  one  cited.  The  im- 
port of  the  term  personal  property,  and  of  the  words  right  and 
interest  in  goods  pledged,  is  certainly  different.  The  first 
includes  all  things  rnoveable  which  are  the  subject  of  property ; 
the  other,  a  qualified  right  and  interest  in  the  things  them- 
selves. The  term  personal  property  is  used  in  this  law  in  a 
restricted  sense ;  ic  applies  to  goods  and  chattels,  coin,  bills  of 
monied  corporations,  which  partake  to  some  extent  of  the 
character  of  coin,  in  a  word  to  things  which  can  be  felt  and 
handled.  But  goods  and  chattels  and  the  right  and  interest 
of  the  pledger  in  "such  goods,"  it  seems  to  me,  are  far  from 
being  identical. 

It  is  difficult  to  account  for  the  use  of  different  terms  in  the 
20th  and  23d  sections  upon  the  hypothesis  assumed  by  the 
Supreme  Court. 

Few  men  possessed  a  more  accurate  knowledge  of  the  force 
and  effect  of  legal  language,  than  the  distinguished  gentlemen 
who  revised  our  laws  :  that  they  used  terms  the  legal  signifi- 
cation and  common  understanding  of  which  were  different,  to 
convey  the  same  idea,  is  not  probable,  nor  should  this  language 
be  so  construed,  unless  such  construction  is  necessary  to  give 
effect  to  the  statute.  The  term  personal  property  was  intend- 
ed to  include  not  merely  goods  and  chattels,  but  the  bills  of 
monied  corporations,  which  were  of  a  mixed  character  ;  these 
last  being  subjected  to  seizure  like  goods  and  chattels,  were  to 
be  sold  in  the  same  manner,  and  both  were  consequently 
embraced  under  the  general  term  personal  property  in  the 
23d  section 

To  this  extent  the  19th  and  23d  sections  were  declaratory 
of  the  law  at  the  time  of  the  revision.  (12  J.  JR.  220.  Ib. 
395.  J.  R.  116, 14  do.  352).  The  language  of  both  is  substan- 
tially copied  from  the  decisions  of  our  courts,  introducing  no 
new  principle,  and  intended,  as  I  apprehend,  to  be  applicable 


82  CASES  IN  THE  COURT  OF  APPEALS. 

Stief  v.  Hart. 


to  the  same  kind  of  property  which  was  the  acknowledged 
subject  of  seizure,  of  dir  ision,  and  manual  delivery  at  common 
law.  The  20th  section,  however,  establishes  a  new  principle, 
and  subjects  an  interest  in  goods  to  sale  which  could  not  be 
reached  at  common  law.  Its  phraseology  as  we  have  seen  is 
adapted  to  that  purpose,  and  of  course  different  from  that  of 
the  other  sections.  The  Sheriff  is  authorised  to  sell,  (not  the 
goods)  but  the  right  and  interest  of  the  pledger,  and  this  inter- 
est is  all  that  is  acquired  by  the  purchaser.  The  right  to  levy 
upon  the  bills  of  monied  corporations  expressly  given  in  the 
preceding  section,  is  omitted  in  the  20th,  for  the  obvious  rea- 
son, that  a  right  is  not  the  subject  of  a  manual  taking ;  it  is 
also  indivisible,  and  consequently  cannot  be  sold  in  parcels, 
as  directed  by  the  23d  section  as  to  the  personal  property 
therein  mentioned. 

Had  the  20th  section  related  to  the  sale  of  real  estate, 
instead  of  a  right  and  interest  in  personal  property,  effect 
might  be  given  to  its  provisions  without  implying  an  authority 
in  favor  of  the  Sheriff  to  change  the  possession  as  a  means  of 
effecting  a  sale.  As  the  law  stood  at  the  time  of  the  revision, 
an  Equity  of  redemption,  the  mortgagee  being  in  possession, 
a  reversion,  and  kindred  interests  in  land  might  have  been 
sold  upon  execution  without  any  levy  upon  the  land  out  of 
which  those  interests  arose,  and  without  interfering  with 
the  rightful  possession  of  third  persons.  Wood  vs.  Colvin. 
(6  Rill  230). 

The  Revisers  in  their  note  to  the  20th  section,  after  pre- 
mising that  goods  bailed  or  assigned  could  not  be  sold  at  the 
common  law,  remark  "  that  no  possible  evil  is  apprehended 
from  extending  the  same  principle  which  prevails  here  in  rela- 
tion to  real  estate  to  personal  property,"  (3  li.  S.  727.)  By 
the  principle  adverted  to,  a  lessor's  interest  in  real  estate  might 
be  sold,  but  a  lessee  could  not  be  divested  of  his  possession  as 
a  means  of  accomplishing  such  sale.  So  in  the  case  of  per- 
sonel  property.  No  case  has  been  cited,  Avherc  the  manual 
taking  of  goods  by  an  officer,  has  been  justified  by  virtue  of  an 
execution  against  one  having  neither  the  possession  in  fact  or 


ALBANY,  SEPTEMBER,  1847.  33 


Stiefv.  Hart. 


the  right  of  present  possession.  The  case  of  partners,  joint 
tenants  and  tenants  in  common,  all  proceed  upon  the  right  of 
the  co-partner,  and  co-tenant,  to  the  possession  as  well  as  an 
interest  in  the  goods  taken.  (Phillips  vs.  Cook,  2  Hill  47 
note.)  The  possession  is  itself  a  legal  right  which  may  be 
transferred  by  sale.  (8  Wend.  239  ;  2  Cow.  253). 

The  decision  of  the  Supreme  Court  makes  an  exception  in 
the  case  of  a  pledge  under  the  statute  to  a  rule  otherwise  uni- 
versal. In  the  second  place  the  decision  deprives  the  pledgee 
in  all  cases  of  the  possession  of  goods  which  he  has  acquired 
by  a  valid  contract  made  in  good  faith  and  for  a  valuable  con- 
sideration with  the  debtor,  and  in  many  instances  of  the  whole 
benefit  of  his  agreement ;  and  this  without  reference  to  the 
fact,  whether  the  debt  Avhich  is  to  be  enforced  by  execution 
was  incurred  prior  or  subsequent  to  the  bailment.  Thirdly, 
in  the  absence  of  fraud,  it  gives  the  officer  greater  interest  in 
and  control  over  the  property,  than  is  possessed  or  could  be 
exercised  by  the  debtor  through  whom  he  makes  title,  legal- 
izing the  manual  taking  and  removal  of  goods,  to  which  the 
former  had  neither  the  right  of  possession,  or  possession  in 
fact.  I  cannot  believe  that  an  implication  attended  by  such 
consequences  is  a  necessary  one.  The  law  gives  to  the  creditor 
the  right  and  interest  of  the  pledger,  and  when  it  grants  to 
the  Sheriff  authority  to  transfer  that  interest  without  removing 
the  property  from  the  possession  of  the  pledgee,  it  gives  the 
means  of  obtaining  it.  A  sale  can  be  made  of  an  interest  in 
personal  as  well  as  in  real  estate  without  a  prior  change  of 
possession,  and  if  a  right  to  levy  is  implied  in  behalf  of  the 
officer,  it  ought  to  be  qualified  by  the  right  of  sale  in  behalf  of 
which  it  is  invoked.  The  latter  is  limited  to  the  right  and 
interest  of  the  pledgor ;  let  the  Sheriff  then  seize  what  the 
law  empowers  him  to  sell,  and  there  could  be  no  just  ground 
of  complaint  in  any  quarter. 

Again,  the  reasons  upon  which  the  authority  of  the  Sheriff 
at  common  law  rests,  to  take  exclusive  possession  of  the  goods 
upon  execution,  apply  but  partially  to  the  present  case.  Those 
reasons  are,  first,  that  it  is  necessary  for  their  safe  keeping  ; 


34  CASES  IN  THE  COURT  OF  APPEALS. 

Stief  v.  Hart 

secondly,  to  enable  him  to  divide  and  sell  them  in  parcels, 
and  lastly,  to  make  delivery  to  the  purchasers.  But  accord- 
ing to  the  20th  section  of  this  law,  the  purchaser  is  not  entitled 
to  possession  of  the  goods ;  the  officer  cannot  sell  in  parcels  ; 
and  the  property  after  sale,  remains  with  the  pledgee,  with 
whom  the  purchaser  must  adjust  the  lien  and  upon  whose 
responsibility  he  must  rely  for  a  delivery.  It  is  true  the  goods 
would  not  always  be  within  view  at  the  time  of  sale.  But 
they  could  be  described  with  reasonable  certainty,  which  is  all 
that  would  be  necessary  to  pass  the  interest  of  the  pledger. 
The  same  knowledge  that  would  enable  the  officer  to  seize  and 
remove  the  goods  in  the  hands  of  the  pledgee,  would  enable 
him  to  levy  upon  the  interest  to  be  sold,  to  make  an  inventory, 
and  to  execute  a  bill  of  sale,  or  give  such  a  description  that  a 
fair  estimate  could  be  made  of  their  value.  A  view  would  not 
determine  the  price  to  be  paid,  since  the  value  of  the  pledger's 
interest  would  depend  upon  the  lien  to  which  they  were  liable. 

I  admit  this  to  be  an  inconvenience,  but  it  is  one  which  is 
inseparable  from  the  nature  of  the  interest  sold :  it  is  one  to 
which  the  pledger  is  exposed  in  making  a  voluntary  sale  of  his 
interest,  and  one  to  which  those  who  claim  under  him  must 
also  submit. 

The  argument  from  inconvenience  will  bear  with  equal  force 
against  the  construction  of  the  Supreme  Court ;  for  that  gives 
to  the  lowest  executive  officer  that  the  law  entrusts  with  its 
process,  with  a  view  to  the  sale  of  an  inconsiderable  interest 
in  a  valuable  property,  the  right  to  override  a  valid  contract 
between  the  debtor  and  pledgee,  by  removing  the  whole  pro- 
perty from  the  possession  of  the  latter,  detaining  it  until  the 
day  of  salo  ;  and  for  a  reasonable  time  afterwards,  to  enable 
the  purchaser  to  ascertain  and  pay  the  lien.  Of  what  is  a 
reasonable  time  the  officer  of  course  must  be  the  judge,  as 
there  is  no  one  to  determine  for  him. 

It  makes  no  difference  in  the  case  supposed,  whether  the 
judgment  was  fraudulent  or  not,  whether  it  was  for  five  dol- 
lars or  five  hundred. 

It  seems  to  me  that  these  evils  are  palpable  ;  and  yet  if 


ALBANY,  SEPTEMBER,  1847.  35 

Stief  v.  Hart. 

this  be  the  true  construction  of  the  statute,  they  mustf  have 
escaped  the  attention  of  the  revisers,  as  they  assure  us  they 
apprehended  no  possible  evil  from  the  adoption  of  the  princi- 
ple they  recommended. 

Upon  the  whole  case,  therefore,  I  am  of  opinion,  that  the 
judgment  of  the  Supreme  Court  should  be  reversed. 

The  rights  of  the  pledgee  are  as  important  as  those  of  the 
judgment  creditor,  they  are  also  prior  in  point  of  time,  both 
should  be  respected,  and  such  a  construction  should  be  given 
to  the  statute,  as  will  enable  the  creditor  to  reach  the  interest 
of  the  pledger,  without  essentially  impairing  the  right  of  the 
pledgee  under  his  contract. 

GRAY,  J.  The  property m  in  question  was  delivered  by 
Willmarth,  the  general  owner,  to  the  plaintiff,  to  secure  the 
payment  of  a  debt  owing  to  the  plaintiff. 

Besides  the  delivery  of  the  goods  to  him  as  a  security  for 
his  debt,  the  plaintiff  was  authorized,  by  express  arrangement 
between  him  and  the  owner,  to  sell  the  goods,  and  to  apply 
the  avails  to  the  extinguishment  of  the  debt  for  which  they 
were  pledged.  On  the  delivery  of  the  goods,  the  price  at 
which  they  were  to  be  accounted  for  to  the  owner,  was  fixed, 
and  it  was  part  of  the  arrangement  between  the  parties, 
moreover,  that  the  proceeds  of  the  goods  above  the  price  so 
fixed,  should  go  to  the  plaintiff,  and  be  retained  by  him  as  his 
profit  exclusively. 

The  plaintiff's  right  of  possession  in  this  case,  was  coupled 
with  a  right  to  sell,  and  an  interest  beyond  the  mere  security 
for  his  debt ;  which,  I  think,  distinguishes  this  from  the  ordi- 
nary case  of  a  pledge,  and  gives  him  the  exclusive  possession 
and  precludes  absolutely  the  removal  of  the  goods  by  the 
Sheriff.  But  viewing  this  as  the  ordinary  case  of  a  pledge, 
it  is  entirely  clear  that  the  statute,  which  has  changed  the 
common  law,  and  authorizes  the  sale  of  the  interest  of  the 
pledger  in  the  property  pledged,  does  not  authorize  the  remo- 
val of  the  property  out  of  the  possession  of  the  pledgee. 

The  statute,  section  20,  2  R.  S.,  page  366,  which  authorizes 


86  CASES  IN  THE  COURT  OF  APPEALS. 


Slief  v.  Hart. 


the  safe  on  execution  of  the  pledger's  interest,  qualifies  the 
right  which  the  purchaser  acquires  therein  to  the  precise  in- 
terest of  the  pledger,  and  expressly  secures  the  possession  of 
the  goods  to  the  pledgee,  until  a  compliance  by  the  purchaser 
with  the  conditions  of  the  pledge. 

The  provisions  of  the  section,  taken  together,  negative,  by 
implication  at  least  if  not  expressly,  the  right  of  the  officer, 
or  of  any  other  person,  to  remove  the  pledge  from  the  posses- 
sion of  the  pledgee.  At  all  events  it  contains  no  authority 
for  the  officer  having  the  execution  to  take  the  goods  pledged 
into  his  own  possession,  or  to  do  any  other  act  in  respect 
thereto  than  to  dispose  of  the  same  by  sale.  The  Sheriff,  by 
the  levy,  acquires  no  other  right  in  the  goods  pledged  than 
that  which,  at  the  time,  remained  in  the  pledger,  and  as  the 
pledgor  clearly  had  not  the  right  to  the  possession  himself,  and 
could  not  legally  interfere  with  the  possession  of  the  pledgee, 
so  the  Sheriff,  by  his  levy,  acquired  no  such  right. 

By  the  common  law  and  the  adjudications  of  our  Courts, 
prior  to  the  Revised  Statutes,  the  interest  of  the  pledgor  in 
property  pledged,  was  not  the  subject  of  seizure  and  sale  on 
execution.  (Story  on  Bailment,  sec.  353  ;  14  Johns.  222 ;  17 
Johns.  116  ;  5  Johns.  335  ;  4  Cow.  461 ;  Revisers'  Notes ,  3  R. 
S.,  page  727,  sec.  17.)  Although  in  the  cases  cited  on  the 
argument,  (4  Wend.  292,  and  10  Wend.  318)  property  in  the 
nature  of  a  pledge  was  sold  on  execution,  yet  the  question  of 
the  right  to  sell  was  not  raised,  nor  passed  upon  by  the  Court 
in  either  case. 

An  actual  taking  and  removal  of  the  pledge,  is  not  a  ne- 
cessary incident  to  a  sale  thereof  by  the  Sheriff,  or  in  other 
words,  the  right  to  sell  does  not  imply  a  right  to  remove.  The 
sale  may  be  effected  without  an  actual  interference  with  the 
pledgee's  possession.  The  Sheriff,  by  the  23d  section  of  the 
same  statute,  which  is  an  enactment  declaratory  of  the  rule 
as  previously  settled  by  judicial  decision,  requires  the  presence 
of  the  property  at  the  time  and  place  of  the  sale.  This  un- 
questionably gives  the  Sheriff  authority  to  enter  upon  the 
premises  where  the  property  may  be  situated,  and  have  the 


ALBANY,  SEPTEMBER,   1847.  37 


Stief  v.  Hart. 


inspection  of  the  property,  but  does  not  authorize,  either  ex- 
pressly or  by  necessary  implication,  its  actual  taking  or  re- 
moval. The  two  sections  together  give  him  the  right  of 
seeing,  levying  upon  and  selling  the  property,  but  give  him 
no  right  to  take  it  out  of  the  possession  of  the  pledgee  except 
upon  the  terms  provided  by  the  20th  section.  Having  the 
right,  therefore,  to  visit  the  place  where  the  goods  may  be  de- 
posited for  the  purpose  of  making  a  levy,  he  has  the  same 
right,  also,  on  the  sale  subsequently,  with  all  such  persons  as 
may  attend  as  bidders,  to  enter  upon  the  same  premises  to 
accomplish  the  sale.  The  Sheriff,  and  all  persons  accompa 
nying  him  as  bidders,  will  be  protected,  and  are  not  liable  as 
trespassers.  In  the  case  of  the  People  vs.  Hopson,  (1  Denio 
575)  it  is  expressly  settled  that  "where  a  levy  under  an  exe- 
cution is  made  upon  personal  property  which  is  left  in  the  de- 
fendant's possession,  the  officer  may  sell  on  the  defendant's 
premises,  and  third  persons  may  rightfully  attend  there  as 
bidders."  Nor  is  the  argument  that  the  security  of  the  She- 
riff renders  an  actual  taking  and  removal  necessary,  well 
founded.  It  does  not  follow  that  he  would  be  accountable  to 
the  judgment  creditor  for  the  value  of  the  goods,  should  the 
same  during  the  time  intermediate  the  levy  and  sale  be  re- 
moved by  the  pledgee,  or  any  other  person,  beyond  the  reach 
of  the  Sheriff.  The  statute  not  having  clothed  him  with  au- 
thority to  remove  the  goods  out  of  the  possession  of  the 
pledgee,  he  will  not  be  held  accountable  for  their  loss  if  that 
loss  is  not  attributable  to  his  own  fault  or  procurement.  Neither 
the  statute,  nor  the  security  of  the  officer,  or  of  the  execution 
creditor,  require  that  the  property  pledged  shall  be  taken  out 
of  the  possession  of  the  pledgee. 

The  statute,  withholding  from  the  officer  the  right  to  remove 
the  property,  imposes  upon  him  no  responsibility  for  its  safe 
keeping,  or  accountability  for  any  waste  or  loss  not  properly 
chargeable  to  his  default. 

The  statute,  authorizing  the  sale  of  a  pledge,  is  restrictive 
of  common  law  right,  and  must  be  construed  strictly.  Noth- 
ing that  is  not  expressly  provided  for,  and  given  thereby,  ca 


CASES  IN  THE  COURT  OF  APPEALS. 


Stief  v.  Hart. 


be  taken  by  intendment  or  implication.  It  is  entirely  clear, 
from  the  language  of  the  statute  and  the  note  of  the  revisers 
accompanying  it,  that  the  authority  to  sell  the  interest  of  the 
pledgor  in  the  property  pledged,  was  not  designed  to  interfere 
with  the  possessory  right  of  the  pledgee.  (See  Revisers'  note, 
3  R.  S.,  page  727,  section  117.) 

The  cases  (12  Wend.  134,  Scruyhamvs.  Carter;  23  Wend. 
610,  Burrallvs.  Acker;  24  Wend.  395,  Philips  vs.  Cook; 
17  Wend.  58,  Randall  vs.  Cook ;  2  Hill  47,  Note,  Waddell 
vs.  Cook',  and  4  Hill  161,  Birdseye  vs.  Ray,)  relied  on  as 
establishing  the  right  of  the  Sheriff  to  levy  and  remove  the 
property  pledged  from  the  custody  of  the  pledgee,  have  no 
application  in  the  case  of  a  pledge.  In  the  three  first  cases 
the  property  was  copartnership  property,  taken  and  sold  on 
execution  against  one  of  the  partners,  and  the  actions  were 
prosecuted  by  the  partners  not  parties  to  the  execution.  The 
fourth  was  the  case  of  a  sale  of  the  mortgagor's  interest  in 
property  in  the  possession  of  the  mortgagor  covered  by  a 
chattel  mortgage,  and  the  fifth  and  sixth  were  cases  Avhere  the 
property  sold  was  held  by  several  persons  jointly,  and  as  ten- 
ants in  common,  and  the  interest  of  all  were  seized  and  re- 
moved for  the  debt  of  one. 

In  all  these  cases  except  the  case  of  the  chattel  mortgage, 
the  owners  had  severally  the  right  to  the  possession  of  the 
entire  property  to  the  exclusion  for  the  time  being  of  the 
other  owners,  and  the  Sheriff  had  consequently  the  same  pos- 
sessory right,  by  virtue  of  his  execution,  to  which  the  indivi- 
dual who  was  the  execution  debtor  was  entitled. 

The  case  under  consideration  is  entirely  different.  In  this 
case  there  was  no  joint  ownership,  no  partnership,  nor  any 
ownership  in  common  in  the  property  between  the  plaintiff, 
the  pledgee,  and  Willmarth,  the  pledgor. 

It  is  true  that  in  the  case  of  Bakcwell  vs.  Ellsworth,  (6 
Hill  484,)  the  Supremo  Court  say  that  when  the  interest  of 
the  pledgor  in  property  pledged  is  levied  upon,  the  Sheriff 
may  take  the  actual  possession  of  the  goods.  But  on  looking 
into  the  case  it  will  be  seen  that  the  question  as  to  the  She- 


ALBANY.  SEPTEMBER,  1847.  39 


Stief  v.  Hart. 


riff's  right  to  the  actual  possession  of  the  goods  was  not  raised 
or  at.  all  discussed,  and  what  was  said  by  the  Court  therefore 
in  this  respect,  can  be  regarded  only  as  an  obiter  dictum,  and 
not  as  a  deliberate  adjudication  of  the  point.  The  section 
which  authorizes  the  sale  of  the  pledger's  interest,  clearly 
does  not  authorize  the  taking  of  the  goods  out  of  the  posses- 
sion of  the  pledgee,  and  the  Sheriff  in  removing  the  goods  in 
this  case,  acted  without  authority  and  became  a  tort-feasor, 
and  judgment  should  have  been  given  against  him.  I  am  of 
opinion,  therefore,  that  the  judgment  of  the  Supreme  Court 
should  be  reversed. 

WRIGHT,  J.  Possession  is  of  the  essence  of  the  contract  of 
pledge.  If  the  pledgee  voluntarily  part  with  the  possession 
lie  loses  the  benefit  of  his  security.  The  right  of  retainer 
until  the  debt  is  paid,  or  engagement  fulfilled,  enters  into  and 
forms  an  essential  part  of  such  contract.  (Story  on  Bail- 
ments, §287  and  cases  cited ;  1  Atk.  165,  5  Bing.  N.  C.  140  : 
1  Smith's  Leading  Cases  223.)  The  pledger  may  voluntarily 
dispose  of  his  interest  in  the  pledge,  but  the  purchaser  secures 
no  right  to  the  possession  until  the  terms  and  conditions  of 
such  pledge  are  complied  with. 

At  common  law  goods  pledged  were  not  liable  to  be  taken 
in  execution  in  an  action  against  the  pledger,  until  an  extin- 
guishment of  the  pledgee's  title.  (Story  on  Bailments  §  353 
and  cases  cited,}  Formerly,  it  seems  to  have  been  conceded 
by  the  courts  of  this  State,  where  chattels  were  bona  fide 
pledged  or  assigned  in  trust  for  the  payment  of  debts  or  other 
specified  purposes,  the  residuary  interest  of  the  pledger  or 
assignor,  after  the  purposes  of  the  pledge  or  trust  were  satis- 
fied, was  not  a  subject  for  sale  on  a  fi.  fa.  Therefore,  to 
enable  the  creditor  of  the  pledger  to  reach  his  interest  the 
Revised  Statutes  provided  that  such  interest  may  be  sold  on 
execution.  (2  Rev.  Stat.  367  §  20  ;  Revisers  notes  part  3d, 
Chap.  6,  title  5,  §  17.  24.)  The  provision  is  as  follows : — 
"  When  goods  or  chattels  shall  be  pledged  for  the  payment 
of  money,  or  the  performance  of  any  contract  or  agreement, 


40  CASES  IN  THE  COURT  OF  APPEALS. 

Stief  v.  Hart 

the  right  and  interest  in  such  goods,  of  the  person  making 
such  pledge,  may  be  sold  on  execution  against  him,  and  the 
purchaser  shall  acquire  all  the  right  and  interest  of  the  defen- 
dant, and  shall  be  entitled  to  the  possession  of  such  goods  and 
chattels  on  complying  ivith  the  terms  and  conditions  of  tht 
pledge."  The  intent  of  the  provision  is  two-fold:  1st,  To 
empower  the  officer  to  sell  that  which  it  was  before  conceded 
he  had  no  authority  for  selling  :  2d,  To  vest  in  the  purchaser 
the  precise  interest  of  the  pledger.  The  officer  is  to  do 
what  the  pledger  himself  might  have  done  and  nothing  more, 
to  vest  in  the  purchaser  his  right.  The  sole  aim  of  the  stat- 
ute is  to  remedy  an  existing  and  admitted  evil,  viz  :  the  injury 
to  creditors  arising  from  an  inability  to  reach  by  the  process 
of  the  law  the  residuary  interest  of  a  pledger  or  assignor.  I 
cannot  think  that  it  contemplates,  in  any  way,  even  a  tempo- 
rary disturbance  of  the  pledgee's  rights.  The  power  is  given 
to  the  officer  to  sell,  not  the  goods  and  chattels  themselves, 
but  the  pledger's  "right  and  interest"  therein.  He  is  to  sell 
something  in  itself  incapable  of  manual  seizure. 

The  question  presented  in  this  case  is,  whether  a  Sheriff 
under  the  section  of  the  statute  above  cited  aided  by  the  pro- 
visions of  the  23d  section  following,  is  authorized  to  take 
corporal  possession  of  the  pledged  property,  and  remove  it 
from  the  hands  and  custody  of  the  pledgee.  In  other  words, 
whether  the  statute  in  securing  a  benefit  to  the  creditor  of  the 
pledgor,  contemplated  the  infringement  and  disturbance  of  the 
rights  of  the  pledgee.  For  it  is  idle  to  assume  that  no  injury 
can  arise  to  the  pledgee  by  compelling  him,  before  an  extin- 
guishment of  his  title  by  the  payment  of  his  debt  or  otherwise, 
to  yield  up  even  to  an  officer  of  the  law  the  actual  possession 
of  his  pledge.  The  undoubted  effect,  in  many  cases,  would 
be  to  jeopard  or  impair  his  security. 

It  is  insisted,  that  as  the  20th  section  authorizes  the  officer 
to  sell,  and  the  23d  section  provides  that  "no  personal  pro- 
perty shall  be  exposed  for  sale  unless  the  same  be  present  and 
within  the  view  of  those  attending  such  sale ;"  that  the 
power  to  take  actual  possession,  and  remove  the  property  from 


ALBANY,  SEPTEMBER,  1847. 


Sticf  v.  Hart. 


the  custody  of  the  pledgee  is  necessarily  implied — that  the  law 
having  charged  the  officer  with  a  performance  of  a  duty,  he  is 
clothed  by  implication,  with  all  the  power  necessary  to  its  full 
discharge.  In  the  abstract,  the  principle  may  be  correct, 
whilst  the  species  of  power  contended  for,  in  this  case,  may 
not  follow  from  it  as  a  consequence.  That  it  does  not,  it  may 
be  urged,  1st,  That  the  power  contended  for  is  in  derogation 
of  a  common  law  right,  and  should  not  be  presumed ;  2nd, 
That  effect  may  be  given  to  the  statute,  and  its  object  fully 
attained,  without  destroying  the  possession  of  the  pledgee ; 
3d,  That  the  statute  does  not  contemplate  a  change  of  the 
possession  of  the  pledge  until  after  its  redemption  by  the  pur- 
chaser. The  officer  is  to  sell,  and  the  purchaser  to  acquire  all 
the  "  right  and  interest"  of  the  pledgor.  The  pledger's  inter- 
est is  transferred  by  the  act  of  the  officer,  and  the  operation 
of  the  statute,  to  the  purchaser,  placing  the  latter  in  the  pre- 
cise relation  of  the  pledgor  to  the  pledgee.  But  as  a  bona 
fide  pledgee  would  be  entitled  to  the  possession  of  the  pledge 
against  the  pledgor  and  all  others,  until  the  bailment  was  ter- 
minated by  payment,  or  his  title  extinguished  in  some  other 
way,  it  is  provided  that  after  the  sale  and  legal  transfer  of 
the  interest  of  the  pledgor  to  the  purchaser,  the  latter  shall 
have  possession  "  on  complying  with  the  terms  and  conditions 
of  the  pledge."  The  obvious  meaning  of  the  section  is,  that 
the  officer  may  sell  and  the  purchaser  acquire  the  "interest" 
of  the  pledgor,  but  that  the  pledgee  shall  only  be  divested  of 
his  possession  of  the  pledged  property  after  a  redemption  by 
the  purchaser ;  4th,  That  it  is  extremely  doubtful  whether  the 
provisions  of  the  28d  section  apply  to  the  sale  contemplated 
by  the  20th  section,  and  indeed,  if  the  whole  section  be  read 
together,  it  is  clear  that  they  do  not.  In  addition  to  having 
the  property  present  and  within  the  view  of  those  attending 
the  sale,  the  section  provides  that  such  property  "  shall  be 
offered  for  sale  in  such  lots  and  parcels  as  shall  be  calculated 
to  bring  the  highest  price."  The  residuary  interest  in  goods 
and  chattels  cannot  be  sold  in  "  lots  and  parcels."  But  if  the 

Sheriff  must  necessarily  have  the  pledge  in  view  when  offered 

6 


42  CASES  IN  THE  COURT  OF  APPEALS. 


Stief  v.  Hart. 


for  sale,  he  may  comply  -with  the  statutory  direction  without 
removing  the  property  from  the  possession  of  the  pledgee. 
If  he  can  enter  upon  the  pledgee's  premises  to  seize  and  re- 
move the  goods,  he  can  also  enter  to  sell,  and  may  sell  with- 
out removal,  thus  leaving  the  right  of  the  pledgee  undisturb- 
ed. It  is  true,  that  hy  leaving  the  property  in  the  possession 
of  the  pledgee,  the  officer  would  encounter  the  risk  of  having 
it  forthcoming  at  the  sale,  hut  if  he  has  no  power  to  remove 
he  would  not  be  responsible,  should  he  fail,  by  the  act  of  the 
pledgee,  to  effect  a  sale.  On  the  other  hand,  should  he  divest 
the  pledgee  of  his  possession,  the  effect  might  be  to  impair,  if 
not  wholly  destroy,  the  security  of  the  latter. 

I  cannot  bring  my  mind  to  the  conclusion  that  the  legisla- 
ture in  giving  to  the  officer  the  power  of  disposing  of  the 
pledger's  interest  for  the  benefit  of  his  creditors  intended,  in 
any  respect,  to  interfere  with  the  common  law  right  of  the 
pledgee  to  exclusively  hold  the  possession  of  the  property 
until  the  bailment  was  terminated,  by  a  compliance  with 
its  terms  and  conditions.  Consequently  I  am  of  the  opinion 
that  the  Circuit  Judge  erred  in  charging  the  jury,  in  this  case, 
"  that  where  property  is  pledged  for  debt  and  in  the  posses- 
sion of  the  pledgee,  a  Sheriff  having  an  execution  against  the 
pledgor,  may  by  virtue  thereof,  take  the  said  property  out  of 
the  hands  of  the  pledgee  into  his  own  possession,  and  remove 
it,  and  sell  the  right  and  interest  of  the  pledgor  therein."  I 
cannot  resist  the  conviction,  that,  in  this  State,  where  vast 
amounts  of  property  are  held  in  pledge  for  advances  made 
thereon,  the  adoption  of  the  principle  that  a  sheriff  or  consta- 
ble, having  an  execution  against  the  pledgor,  may  arbitrarily 
divest  the  pledgee  of  his  possession,  would  be  fraught  with 
the  most  injurious  consequences  to  the  interests  of  commerce  : 
and  I  am  unwilling,  without  the  clearest  expression  of  legis- 
lative intention,  to  lend  my  aid  to  its  adoption. 

The  judgment  of  the  Supreme  Court  should  be  reversed, 
and  a  venire  de  novo  awarded. 

BRONSON  and  JONES,  Js.,  were  in  favor  of  affirming  the 
judgment. 

JOHNSON,  J.,  was  for  reversal.  Judgment  affirmed. 


ALBANY,  SEPTEMBER,  1847.  43 


Fort  v.  Bard. 


ABRAHAM  I.  FORT,  Appellant, 

vs. 
WILLIAM  BARD  and  others,  Respondents. 

An  appeal  will  not  lie  from  a  decision  of  the  Court  of  Chancery  upon  a  question 
of  practice  addressed  to  the  discretion  of  that  Court. 

Where  a  defendant  in  the  Court  of  Chancery  suffered  the  bill  to  be  regularly  taken 
as  confessed  by  him,  and  then,  upon  affidavits  and  papers  excusing  his  default, 
and  shewing,  as  his  counsel  claimed,  a  good  defence  on  the  merits,  moved  that 
Court  to  set  aside  the  default  and  for  leave  to  answer,  and  the  Chancellor  de- 
nied the  motion ;  held,  that  no  appeal  would  lie  in  such  a  case,  and  the  appeal 
brought  by  the  defendant  from  such  a  decision,  was  accordingly  dismissed  on 
motion. 

MOTION  by  the  respondents  to  dismiss  the  appeal.  The 
facts  are  sufficiently  stated  in  the  opinion  of  the  Court. 

J.  Rhoades  and  S.  Stevens,  for  the  motion. 
0.  Clark  and  N.  Hill,  Jr.,  opposed. 

By  the  Court,  BRONSON,  J.  The  appellant,  who  was  one 
of  the  defendants  in  the  Court  of  Chancery,  suffered  the  bill 
to  be  regularly  taken  pro  confesso  against  him ;  and  then,  on 
affidavits  and  papers  which,  as  his  counsel  insist,  fully  excused 
the  default,  and  showed  a  good  defence  on  the  merits,  moved 
the  Court  to  set  aside  the  default,  and  allow  him  to  defend  the 
suit.  The  Chancellor  made  an  order  denying  the  motion  with 
costs  ;  and  from  that  order  the  appeal  is  brought.  The  case 
of  Rowley  vs.  Van  Bentliuysen,  (16  Wend.  369,)  is  a  direct 
authority  for  saying,  that  an  appeal  will  not  lie  in  such  a  case. 
It  was  a  question  of  mere  practice,  addressed  to  the  discretion 
of  the  Chancellor  ;  and  whether  he  decided  right  or  wrong  is 
not  a  question  for  review.  Although  the  late  Court  of  Errors 
was  disposed  to  enlarge  its  jurisdiction,  and  did  not  always 
follow  its  own  decisions,  it  has  never  held,  so  far  as  I  can 
learn,  that  an  appeal  would  lie  from  an  order  refusing  to  open 
a  regular  default.  On  the  contrary,  that  Court  has  often  re- 


44  CASES  IN  THE  COURT  OF  APPEALS 


Fort  v.  Bard. 


cognized  the  case  of  .Rowley  vs.  Van  Benthuysen  as  laying 
down  the  rule  by  which  it  intended  to  be  governed ;  and  has 
applied  it  in  matters  of  more  importance  than  the  granting  or 
refusing  motions  to  open  defaults.  (Rogers  vs.  HosacJc,  18 
Wend.  319 ;  Rogers  vs.  Holley,  id.  350.)  It  is  true,  that  in 
Tripp  vs.  Cool:,  (26  Wend.  143,)  one.  Senator  expressed  his 
disapprobation  of  the  decision  in  Rowley  vs.  Van  BentJiuysen  ; 
but  so  far  as  appears,  no  other  Senator  agreed  with  him  in 
opinion.  And  though  the  Chancellor  took  occasion  to  say, 
that  appeals  should  be  allowed  in  every  case  not  manifestly 
frivolous,  it  will  be  seen  that  he  spoke  as  the  officer,  and  in 
view  of  consequences  which  might  result  to  the  Court  of 
Chancery ;  and  not  as  a  member  of  the  Court  of  Errors. 

The  Court  of  Errors  has,  on  several  other  occasions,  fol- 
lowed the  case  in  the  16th  Wendell ;  but  the  decisions  have 
not  been  reported,  for  the  reason  that  the  question  was  al- 
ready settled.  In  Jewett  vs.  The  Farmers'  Loan  and  Trust 
Company,  the  Chancellor,  on  motion  of  the  complainants, 
ordered  the  defendant's  answer  to  be  taken  off  the  files  of  the 
Court  as  irregular,  and  that  the  bill  be  taken  pro  confesso 
against  him ;  and  from  that  order  the  defendant  appealed. 
After  hearing  his  counsel,  the  Court  of  Errors  dismissed  the 
appeal,  on  the  ground  that  the  point  decided  by  the  Chancel- 
lor was  a  question  of  practice,  resting  in  discretion,  and  not 
subject  to  review  in  another  Court.  This  was  in  September, 
1843.  Two  other  appeals  Avere  dismissed  at  the  same  time, 
and  on  substantially  the  same  ground.  I  recollect  that  In 
another  case,  and  on  another  occasion,  the  Court  dismissed  an 
appeal  from  an  order  resting  in  the  discretion  of  tho  Chancel- 
lor. The  opinion  of  the  Court  was  written  by  me ;  but  I  have 
not  been  able  to  find  it  since  this  motion  was  argued,  nor  is 
the  name  of  the  case  recollected.  I  have  bec-n  furnished  by 
the  State  Reporter  with  a  note  of  the  case  of  Mum  ford  vs. 
Sprague  and  others,  where  the  Court  of  Errors  in  December, 
1846 — its  last  sitting — again  held  the  same  doctrine.  I  have 
been  thus  particular  in  referring  to  cases,  because  the  appel- 
lant's counsel  seemed  to  suppose  that  the  decision  in  Rowley 


ALBANY,  SEPTEMBER,  1847.  45 


Fort  v.  Bard. 


vs.  Van  Benthuysen  had  been  overruled  by  the  Court  which 
made  it. 

The  matter  stands  as  strong,  upon  principle,  as  it  does  upon 
authority.  Within  certain  prescribed  periods,  a  party  who 
has  been  sued,  either  at  law  or  in  equity,  has  a  right  to  ap- 
pear and  make  his  defence.  It  is  a  strict  legal  right,  of  which 
he  cannot  be  deprived.  But  when  that  time  has  expired,  and 
his  default  has  been  entered,  the  legal  right  is  at  an  end ;  and 
if  he  wishes  to  be  heard,  he  must  ask  it  as  matter  of  grace 
and  favor.  The  motion  for  leave  to  plead  or  answer  is  ad- 
dressed to  the  discretion  of  the  Court,  and  may  be  granted  or 
refused  as  the  ends  of  justice  seem  to  require.  It  should 
never  be  granted  unless  the  party  has  a  good  defence  on  the 
merits,  and  the  omission  to  plead  or  answer  in  due  time  was 
the  result  of  accident  or  mistake,  without  any  culpable  negli- 
gence on  his  part.  And  whether  the  motion  is  granted  or  re- 
fused, the  decision  is  final,  so  far  as  relates  to  a  Court  of 
review. 

But  we  have  been  told  in  this  case,  what  I  have  often  heard 
when  sitting  in  the  Supreme  Court  on  motions  for  writs  of 
mandamus  and  certiorari  to  inferior  Courts  and  officers,  that  if 
a  review  is  refused,  those  Courts  and  officers,  under  color  of 
exercising  their  discretion,  will  make  arbitrary,  unjust  and  op- 
pressive decisions.  To  such  arguments  it  was  answered  long 
ago  by  Van  Ness,  J.,  "  we  are  not  to  presume  that  a  public 
officer  will  corruptly  exercise  the  power  with  which  he  is  in- 
vested for  the  public  good ;  and  much  less  ought  we  to  found 
a  decision  upon  odious  and  disreputable  presumptions  against 
the  integrity  of  a  judicial  officer.  A  reasonable  confidence  in 
public  officers  is  necessary  to  the  very  existence  of  civil 
government."  And  Kent,  C.  J.,  said  in  the  same  case,  "  a 
reasonable  confidence  must  be  entertained,  that  every  Court 
will  exercise  its  discretion  soundly."  (Trustees  of  Hunting- 
ton  vs.  Nicollj  3  Johns.  566.)  Although  a  wise  people  should 
be  careful  not  to  go  too  far  in  that  direction,  they  must  of 
necessity  confide  some  discretionary  powers  to  all  public  func- 
tionaries, executive,  legislative  and  judicial.  This  results  from 


46  CASES  IN  THE  COURT  OF  APPEALS. 


Fort  v.  Bard. 


the  very  nature  of  representative  governments.  It  is  impos- 
sible to  set  down  or  specify  in  detail  what  shall  be  done  under 
all  possible  circumstances.  Something  must  be  trusted  to  the 
good  sense  and  honest  purpose  of  the  agent.  Any  one  who 
will  give  himself  the  trouble  to  reflect  on  the  subject,  will  find 
that  there  is  scarcely  a  public  officer  in  the  State,  from  the 
highesi  to  the  lowest,  who  does  not  exercise  some  powers  which 
are  beyond  the  reach  of  judicial  review.  And  this  is  especially 
so  in  relation  to  Courts  of  justice.  They  dispose  of  many 
questions  daily,  where  there  is  no  appeal.  And  it  must  be  so. 
The  questions  are  for  the  most  part  such  as  cannot  be  fully  and 
intelligibly  presented  to  an  appellate  Court.  And  besides,  no 
community  could  endure  the  army  of  Judges  which  would  be 
necessary,  and  the  endless  litigation  which  would  follow  if 
every  decision  in  relation  to  the  mere  practice  and  proceedings 
of  the  Court  might  be  carried  from  Court  to  Court  by  appeal. 
The  reason  assigned  by  the  Chancellor  for  denying  the  mo- 
tion was,  that  the  defendant  asked  the  favor  of  having  the  de- 
fault opened,  for  the  purpose  of  setting  up  as  a  defence  a 
violation  of  the  restraining  law  by  the  corporation  to  which 
the  mortgages  had  been  given,  and  for  the  foreclosure  of  which 
the  bill  was  filed,  without  repaying  the  money  which  he  had 
actually  received  from  the  company.  But  it  is  not  a  matter 
for  inquiry  here  what  considerations  governed  the  mind  of  the 
Chancellor  in  denying  the  motion.  It  is  enough  that  it  was  a 
question  addressed  to  his  discretion. 

Appeal  dismissed. 


NEW-YORK,  NOVEMBER,  1847. 


47 


Corning  t>.  McCullough. 


CORNING  AND  HORNER  vs.  MCCULLOUGH. 

A  suit  against  a  stockholder  of  a  corporation  to  charge  him  individually  with  ? 
debt  contracted  by  it,  pursuant  to  a  provision  in  the  act  of  incorporation,  is  no) 
an  "act'tm  upon  a  statute,  for  a  forfeiture  or  cause,  the  benefit  and  suit  whereof  is 
limited  to  the  party  aggrieved"  and  therefore  is  not  barred  by  the  three  years 
limitation  prescribed  in  the  statute,  (2  R,  S.  298,  §  31,)  for  actions  of  that  class 

The  period  of  six  years  is  the  only  limitation  provided  for  suits  of  this  description. 

Where  the  charter  of  an  incorporated  company  provides  that  the  stockholders  shall 
be  liable  for  its  debts,  and  that  a  creditor  may,  after  judgment  obtained  against 
th*  corporation,  and  execution  returned  unsatisfied,  sue  any  stockholder  and 
recover  his  demand,  such  stockholders  are  liable  in  an  orignal  and  primary 
sense,  like  partners  or  members  of  an  unincorporated  association,  and  their  lia- 
bility is  not  created  by  the  statute  of  incorporation. 

It  seems  that  the  short  statute  of  limitations  above  referred  to  is  intended  only  to 
embrace  penalties  and  forfeitures,  properly  so  called,  and  other  causes  of  action 
penal  in  their  nature,  and  where  both  the  cause  of  action  and  the  remedy  are 
given  by  statute  ;  but  does  not  extend  to  cases  where  the  action  is  partly  given 
by  the  common  law  and  partly  by  statute. 

DEMURRER  to  plea.  Corning  and  Horncr  sued  McCullough 
in  assumpsit  under  the  provisions  of  the  act  incorporating  the 
Rossie  Galena  Company.  (Stat.  of  1837,  p.  445.)  The  9th 
section  of  that  act  provides,  that  the  stockholders  of  the  cor- 
poration shall  be  jointly  and  severally  personally  liable  for  the 
payment  of  all  debts  and  demands  contracted  by  the  corpora- 
tion, and  that  any  person  having  any  demand  against  such 
corporation,  may  sue  any  stockholder  or  director  in  any  Court 
having  cognizance  thereof,  and  recover  the  same  with  costs. 
The  10th  section  provides,  that  before  any  such  suit  shall  be 
commenced  judgment  shall  have  been  obtained  against  the 
corporation,  and  execution  issued  thereon,  and  returned  un- 
satisfied, or  that  the  corporation  shall  have  been  dissolved. 
The  declaration  contained  the  necessary  averments  to  charge 
the  defendant  as  a  stockholder,  personally,  with  a  debt  con- 
tracted for  goods  sold  by  the  plaintiff's  to  the  company.  The 
defendant  pleaded  that  the  cause  of  action  did  not  accrue 
within  three  years  next  before  the  commencement  of  the  suit. 
To  this  plea  the  plaintiffs  demurred,  and  the  defendant  joined 


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48  CASKS  IN  THK  COl'L  r  OF  APPEALS. 

Corning:  c.  McCullough. 


in  demurrer.  The  Supreme  Court  held  the  plea  a  good  bar 
under  2  R.  S.  298,  §  31,  for  the  reasons  assigned  in  the  case 
of  Freeland  and  others  vs.  McCullough,  (1  Denio  414,)  and 
gave  judgment  for  the  defendant.  The  plaintiffs  bring  error. 

N.  Silly  Jr.  and  D.  Burwell,  for  plaintiffs  in  error. 
J.  Van  Buren,  for  defendant  in  error. 

Points  for  plaintiffs  in  error : 

I.  The  Supreme  Court  erred  in  assuming  that  the  action  in 
this  case  was  founded  upon  the  act  incorporating  the  Ilossie 
Galena  Company,  and  not  upon  a  common  law  liability,  and 
that  it  was  therefore  an  action  upon  a  statute,  within  the 
meaning  of  2  R.  S.  297,  8,  §  31. 

1.  Independently  of  the  act  of  incorporation,  the  members 
of  the  company  would  be  liable  for  its  debts  as  partners, 
at  common  law.     (Collyer  on  Partn.  614,  626,  635,  651, 
653.) 

2.  The  legislature,  in  incorporating  the  company,  expressly 
refused  to  exempt  them  from  their  common  law  liability 
as  partners.     The  charter  virtually  holds  this  language  to 
the  members  :  "  You  may  have  a  corporate  capacity  for 
the  convenience  of  transacting  business,  and  the  facility 
of  transferring  your  respective  interests  in  the  joint  con- 
cern ;  but  you  shall  remain  liable  to  the  creditors  of  the 
association  in  the  same  manner,  substantially,  as  though 
you  had  not  been  incorporated."     (Sess.  Laws  of  1837, 
445,   6,   §§9,   10;    2  Denio,   119,    123,   4,  Harger  rs. 
McCullough ;  2  Hill,  268,  2G9,  270,  Moss  vs.  Oakley  ;  3 
Hill,  188,' 190,  Bailey  vs.  Baneker ;  26  Wend.  43,  51,  2, 
Van  Hook  vs.  Whillock;  20  Wend.  614,  617,  Ex  partc 
Van  Riper.} 

4.  Even  conceding  that  the  action  is  founded  partly  on  the 
act  of  incorporation,  and  partly  on  the  common  law, 
which  we  deny,  still  the  case  would  not  be  within  2  R.  S. 
298,  §  31.  (7  Paige  380,  381,  Van  Hook  vs.  Whitlock, 
per  Walworth,  Chancellor.} 


NEW-YORK,  NOVEMBER,  1847.  49 


Corning  v.  McCullough. 


II.  The  Supreme  Court  have  virtually  decided  in  this  casa 
that  all  statutory  remedies  by  action,  except  those  which  are 
given  to  the  people,  or  a  common  informer,  are  embraced  by 
2  R.  8.  298,  §  31.     This  construction  will  extend  the  provi- 
sion to  various  actions  which  were  plainly  not  contemplated 
by  the  Legislature,  and  is  therefore  erroneous. 

III.  The  provision  in  2  JR.  S.  298,  §  31,  was  intended  to  em- 
brace only  actions  for  penalties  and  forfeitures,  properly  so 
called,  and  other  actions  of  the  like  nature. 

1.  The  subject  matter  which  the  Legislature  had  in  view, 
when  they  adopted  the  provisions  in  Art.  3d,  of  which 
the  above  section  is  a  part,  was  actions  for  penalties  and 
forfeitures.     This  they  have  expressly  declared.     (See  2 
R.  S.  291,  2,  §  1,  Tit.  1 ;  2  R.  8.  295,  caption  of  Art. 
2 ;  2  JR.  S.  297,  caption  of  Art.  3.) 

2.  The  section  was  introduced  mainly  to  provide  for  the 
case  of  a  penalty  or  forfeiture  given  to  the  party  ag- 
grieved^ which  was  not  embraced  by  the  preceding  sec- 
tions of  Art.  3d.     (See  2  Greenl.  Laws  of  N.  Y.  96 ;  4 
Mod.  129 ;   Cro.  Eliz.  645  ;  Noy  71 ;  3  Leon.  237.) 

3.  The  word  "  cause'  was  substituted  in  this  section  for  the 
word  "penalty"  used  in  the  preceding  ones,  from  a  doubt 
whether  a  statute  giving  a  sum  of  money  or  damages, 
both  by  way  of  remedy  to  the  plaintiff,  and  punishment 
to  the  defendant,  could  rightly  be  called  a  "  statute  made, 
&c.,  for  a  penalty  ;"  learned  Judges  having  differed  upon 
the  question.     (Espinasse  on  Penal  Actions,  p.  6  to  8  ; 
SardivicTcs  Rep.  390,  393,  Merrick  vs.  The  Hundred, 
£c. ;  1  Wilson's  Rep.  125,  6,  Williams  vs.  Middleton; 
2  Term  Rep.  154 ;  8  Johns.  Rep.  345 ;  14  Johns.  Rep. 
255  ;  3  Toml.  Law  Diet.  520.) 

4.  By  using  the  word  "  cause"  in  the  unlimited  sense  as- 
cribed to  it  by  the  Supreme  Court,  the  word  "  forfeiture" 
is  rendered  entirely  inoperative.     But  the  Legislature, 
having  expressly  declared  that  the  subject  matter  intend- 
ed to  be  provided  for  was  actions  for  penalties  and  for- 
feitures, the  word  "  cause,"  being  general  and  of  doubtful 


50 


Corning  v.  McCullough. 


import,  is  to  be  limited  and  applied  accordingly.  (1 
Blackst.  Comm.  60,  61 ;  1  Plowdcris  Eep.  203  to  206.) 
5.  Again,  the  word  "cause"  being  preceded  by  the  word 
"forfeiture"  is  to  be  understood  as  meaning  something 
of  the  like  nature,  according  to  the  maxim  -noscitur  a 
sociis.  Construed  in  this  way  the  section  will  read :  "  All 
actions  upon  any  statute  made,  or  to  be  made,  for  any 
forfeiture  or  like  cause"  &c.  (See  Broom  8  Legal  Max. 
294,  5;  5  Barn.  $  Aid.  164,  Phillips  vs.  Barber;  4 
Term  Rep.  224,  227,  Evans  vs.  Stevens  ;  2  Moore  491, 
495,  Clark  vs.  G-askarth ;  8  Taunt.  431,  S.  C.) 

IV.  The  action  is  embraced  by  that  part  of  the  statute 
limiting  the  right  of  suing  to  six  years.     (2  R.  S.  295,  §  18.) 

1.  It  is  within  the  express  terms  of  the  4th  subdivision  of 
the  above  section  ;   being  an  action  of  "  assumjysit,  or  on 
the  case,  founded  on  a  contract  or  liability,  express  or  im- 
plied." 

2.  None  of  the  reasons  which  induced  the  Legislature  to 
prescribe  a  short  period  of  limitation  for  punitory  or 
penal  actions,  apply  to  this  case.     It  is  an  action  upon  a 
demand  for  goods  sold,  and  is  entitled  to  as  much  lavor 
as  other  actions  of  the   same  general  character.     (20 
Wend.  614,  ex  parte  Van  Riper.] 

3.  If  the  Supreme  Court  are  right,  however,  the  action 
would  be  barred  absolutely  after  three  years,  and  the 
plaintiff  would  be  entitled  to  none  of  the  exceptions  on 
account  of  disability,  absence  from  the  State,  &c.,  which 
apply  to  other  actions  of  assumpsit,  and  even  of  tort. 
(See  2  R.  S.  296,  7,  §§  24,  26,  27 ;  2  R.  S.  298,  §  32.) 

V.  If  it  be  doubtful,  upon  a  view  of  the  whole  scheme  of 
legislation  on  this  subject,  whether  the  three  years  limitation, 
or  the  six,  is  applicable  to  actions  like  the  present,  that  con- 
struction should  be  adopted  which  will  preserve  the  remedy 
the  longest. 

1.  By  the  common  law,  a  suitor  had  an  unlimited  time 
within  which  to  sue,  the  maxim  being  that  "  a  right  never 
dies/'  (Wilkinson  on  Lim.  1,  2.) 


NEW-YORK,  NOVEMBER,  1847.  51 


Corning  v  McCullough. 


2.  The  "  statute  of  limitations,  being  in  restraint  of  right, 
is  to  be  construed  strictly;"  i.  e.  so  as  to  continue  and 
preserve  the  right,  rather  than  to  abridge  or  destroy  it. 
(14  Johns.  Rep.  480,  per  Van  Ness  J. ;  2  Bos.  $•  Pull. 
546,  7,  per  Heath  J.) 

3.  "  The  better  construction  of  a  statute  is  always  to  ex- 
pound it  as  near  the  rules  of  the  common  law  as  may  be." 
(11  Mod.  Rep.  150,  Arthur  vs.  Bokenham;  1  Saund. 
Rep.  240 ;  10  Johns.  Rep.  579,  580.) 

4.  "  Statutes  are  not  presumed  to  alter  the  common  law 
further  or  otherwise   than   is   clearly   expressed."     (6 
Danes  Air.  589,  pi.  20  ;  11  Mod.  Rep.  150,  Arthur  vs. 
Bokenham ;   10  Johns.  Rep.  579,  580 ;  Bac.  Abr.  tit. 
"  Statute"  (1)  4 ;  Ram.  on  Leg.  Judgm.  160.) 

Points  for  defendant  in  error : 

I.  All  actions  upon  any  statute,  for  any  cause,  the  benefit 
and  suit  whereof  is  limited  to  the  party  aggrieved,  should  be 
commenced  within  three  years  after  the  cause  of  action  ac- 
crued.     (2  Rev.  Stat.  p.  225,  §  31,  new  edition;  1  Rev. 
Laws,  p.  186,  §  6.) 

II.  This  action  is  brought  upon  the  statute  incorporating 
the  Rossie  Galena  Company.     (Session  Laws,  1837,  p.  445  ; 
Bullard  vs.    Bell,    1  Mason  s   Rep.   p.   243 ;   Heacock  vs. 
Sherman,  14  Wend.  58.) 

III.  This  action  was  not  commenced  within  three  years 
after  the  cause  of  action  accrued.     Therefore  the  plea  of  the 
statute  of  limitations  of  three  years  is  good,  and  affords  a  bar 
to  the  recovery  of  the  plaintiffs  in  this  action.     ( Van  Hook 
vs.  Whitloek,  2  Edw.  304  •   same  case,  7  Paige,  373 ;  same 
again,  26  Wendell,  43.) 

JONES,  J.  delivered  the  opinion  of  the  Court : 

Corning  and  Homer,  the  plaintiffs  in  error,  made  a  sale  of 
merchandize  to  the  Rossie  Galena  Company,  wherein  the  de- 
fendant in  error  was  a  stockholder,  and  after  obtaining  a  judg- 
ment against  the  Company  for  the  amount  thereof,  and  after 


52        CASES  IN  THE  COURT  OF  APPEALS. 


Corning  v.  McCullough. 


an  execution,  issued  on  the  said  judgment,  had  been  returned 
unsatisfied,  brought  this  action  against  the  defendant  in  error 
as  being  a  stockholder  and  member  of  the  Company,  and  per- 
sonally liable  for  the  debt.  The  defendant  pleaded  in  bar  of 
the  action  that  the  cause  of  action  did  not  accrue  to  the  plain- 
tiffs within  three  years  next  before  the  commencement  of  the 
suit.  To  this  plea  the  plaintiffs  demurred,  and  the  Supreme 
Court  gave  judgment  against  them.  That  judgment  is  now 
before  this  Court  for  review.  The  question  is,  whether  the 
statute  limitation  of  three  years  for  the  commencement  of  ac- 
tions on  statutes  for  a  forfeiture  or  cause,  the  benefit  and  suit 
whereof  is  limited  to  the  party  aggrieved,  or  to  such  party  and 
the  people  of  the  State  applies  to  this  case,  and  bars  the 
plaintiffs'  action.  The  Revised  Statutes  contain  a  general 
provision  limiting  the  time  to  six  years  within  which  actions 
of  account,  assumpsit,  or  on  the  case,  founded  on  any  contract 
or  liability,  express  or  implied,  are  to  be  commenced,  as  ex- 
pressed in  the  4th  subdivision  of  section  18  of  the  2d  article 
of  title  2d  of  the  chapter  entitled,  "  of  actions  and  the  times 
of  commencing  them,"  which  the  plaintiffs  suppose  to  apply  to 
this  action.  And  those  statutes  also  contain  a  special  provi- 
sion declaring  that  all  actions  upon  any  statute,  made  or  to  be 
made,  for  any  forfeiture  or  cause,  the  benefit  and  suit  whereof 
is  limited  to  the  party  aggrieved,  or  to  such  party  and  the 
people  of  this  State,  shall  be  commenced  within  three  years 
after  the  offence  committed,  or  the  cause  of  action  accrued, 
and  not  after,  as  expressed  in  section  31,  in  the  3d  article  of 
said  title  and  chapter ;  and  within  this  provision  the  defend- 
ant claims  the  present  suit  to  come.  To  which  of  these  classes 
does  this  action  properly  belong  ? 

It  was  the  manifest  intention  of  the  Legislature  in  framing 
the  provisions  of  the  statute  for  limiting  the  times  for  the 
commencement  of  actions,  to  seperate  and  distinguish  actions 
on  contract^  and  for  causes  founded  on  good  and  valuable  con- 
siderations, from  actions  on  statutes  for  forfeitures  and  causes 
in  affinity  with  them,  and  to  apply  to  the  latter  class  shorter 
Derioda  of  limitation  than  to  the  former.  In  accordance  with 


NEW-YORK,  NOVEMBER,   1847.  53 


Corning  v.  McCullough. 


this  principle,  and  with  intent  to  secure  to  all  actions  for  causes 
on  meritorious  consideration,  the  benefit  and  privilege  of  the 
longest  time  of  limitation,  the  4th  subdivision  of  the  18th  sec- 
tion is  conceived  in  the  most  comprehensive  terms,  extending 
to  and  embracing  all  actions  on  the  case,  founded  on  any  con- 
tract or  liability,  express  or  implied ;  and  to  it  this  action,  be- 
ing on  the  case,  for  the  price  or  value  of  merchandize  sold  and 
delivered  by  the  plaintiffs  to  the  Rossie  Galena  Company,  of 
which  the  defendant  was  a  stockholder,  on  the  ground  of  his 
personal  liability  for  the  debt,  must  belong,  unless  the  cause  of 
action  against  the  defendant  was  in  fact  created  or  accrued  to 
the  plaintiffs  by  the  statutes  for  the  incorporation  of  the  Com- 
pany, or  the  action  itself  is  necessarily  upon  the  statute.  Was 
the  debt  contracted  to  these  plaintiffs  by  the  purchase  of  the 
merchandize  sold  to  the  Company,  the  debt  of  the  corporate 
body  exclusively  ?  or  is  this  suit  against  the  defendant  per- 
sonally, for  it,  strictly  and  technically  an  action  on  the  statute 
of  incorporation '? 

The  ground  of  the  action  is  the  individual  liability  of  the 
defendant  to  pay  for  merchandize  sold  and  delivered  to  a  com- 
pany of  which  he  was  at  the  time  a  member.  If  that  Compa- 
ny had  been  a  voluntary  unincorporated  association  of  individ- 
uals, using  the  name  of  the  Rossie  Galena  Company  in  its 
operations,  his  liability  for  its  engagements  would  have  been 
clear,  and  his  defence  in  point  of  form  to  an  action  against  him 
solely  for  a  debt  of  the  Company,  would  have  been  the  non- 
joinder of  his  associates  with  him  in  the  action.  How  has  the 
act  of  incorporation  in  this  case  shielded  the  stockholders  from 
that  responsibility  for  the  debts  of  the  company,  which,  acting 
without  it,  they  would  have  incurred?  It  is  not  a  general 
unqualified  incorporation  of  the  company  imparting  to  the 
stockholders  and  members  Composing  it  as  a  legal  consequence 
an  exemption  from  personal  liability  for  the  debts  and  engage- 
ments of  the  body  corporate.  It  is  a  legislative  grant  of  a 
special  qualified  corporate  capacity,  with  adequate  plenary 
powers  for  the  purposes  of  its  institution,  but  with  the  personal 
liability  of  the  stockholders  for  the  debts  the  company  shall 


54  CASES  IN  THE  COURT  OF  APPEALS. 


Corning  v.  McCullough. 


contract,  and  the  liabilities  they  shall  incur.  The  statute,  at 
the  same  time  that  it  incorporates  the  company,  and  thereby 
enables  them  to  contract  debts  in  their  corporate  names,  pro- 
vides that  the  stockholders  who  compose  the  company,  and  for 
whose  use  and  benefit  purchases  are  made  and  debts  contracted, 
in  their  corporate  name  shall,  notwithstanding  their  incorpo- 
ration, be  jointly  and  severally  personally  liable  for  the  pay- 
ment of  all  debts  or  demands  contracted  by  the  company,  and 
that  any  person  having  any  demand  against  the  corporation, 
may  sue  any  stockholder,  director  or  directors,  in  any  Court 
having  cognizance  thereof,  and  recover  the  same  with  costs. 
The  Legislature  thus  concurrently  with  the  creation  of  the 
body  corporate,  and  in  the  same  statute  which  creates  it,  en- 
acting and  providing  that  it  shall  not  possess  the  capacity  nor 
have  the  legal  effect  and  operation  which  an  unqualified  act  of 
incorporation  would  possess  and  have  of  imparting  to  its  stock- 
holders irresponsibility  for  its  debts,  or  of  contracting  debts  in 
its  corporate  name  on  the  responsibility  of  the  corporation, 
solely  and  so  as  to  exempt  its  stockholders  from  personal  lia- 
bility therefor.  If  then  the  incorporation  of  this  company 
does  not  shield  or  exempt  its  corporators  and  members  from  in- 
dividual responsibility  for  the  debts  and  engagements  of  the 
company,  but  leaves  them,  under  the  common  law  liability,  as 
partners  or  joint  debtors  for  those  debts  and  engagements, 
must  it  not  follow  that  the  defendant,  McCullough,  he  being  a 
stockholder  in  the  Rossie  Galena  Company  at  the  time  the  debt 
of  that  company  to  these  plaintiffs  was  contracted,  became,  on 
the  consummation  of  the  contract  by  the  delivery  of  tho  goods 
to  the  company,  liable  for  the  payment  of  the  debt  contracted 
thereby  ?  The  act  of  incorporation  affording  him  no  protec- 
tion therefrom,  and  not  only  leaving  him  personally  liable  there- 
for, but  in  express  terms  recognizing  and  affirming  such 
liability,  what  defence  could  he  make  to  an  action  charging 
him  as  a  partner  or  joint  debtor  on  the  contract  of  the  com- 
pany ?  The  personal  liability  of  the  stockholders  to  creditors 
under  this  charter,  for  the  debts  of  the  company,  is  an  ele- 
ment of  the  incorporation  which  wholly  excludes  all  claim  of 


NEW-YORK,  NOVEMBER,  1847,  55 

Corning1  v.  McCullough. 

any  stockholder  to  treat  those  debts  as  debts  of  the  corporate 
body  solely,  which  he  did  not  contract  and  is  not  bound  to  pay. 
The  stockholders  all  stand  under  this  act  of  incorporation  on 
the  same  ground,  and  under  the  same  responsibility  as  respects 
creditors,  as  they  would  if  unincorporated  have  stood.  This 
liability  the  stockholders  voluntarily  assumed,  and  it  could  not 
have  been  misunderstood  by  them.  It  is  fully  and  clearly  ex- 
pressed in  the  act  of  incorporation.  The  original  stockhold- 
ers, by  their  acceptance  of  the  charter,  and  subsequent  pur- 
chasers in  becoming  members,  assented  and  agreed  to  the  terms 
and  conditions  of  the  act  of  incorporation.  The  defendant  in 
this  suit,  in  common  with  the  other  stockholders,  by  his  ac- 
ceptance of  the  charter,  agreed  to  its  terms,  and  especially  to 
that  feature  of  it  so  strongly  marked,  of  the  individual  liabili- 
ty of  the  stockholders  equally  with  that  of  the  corporate  body 
for  the  debts  of  the  company.  It  is  a  liability  which  every 
stockholder  must  be  understood  to  assume  and  take  upon  him- 
self and  to  be  under  to  those  who  deal  with  the  company. 
Dealers  contract  with  the  corporation  on  the  faith  of  that  se- 
curity for  the  performance  of  the  contract.  The  credit  they 
give  is  given,  and  they  trust,  as  well  to  the  personal  liability  of 
the  stockholders,  as  to  the  responsibility  of  the  corporation, 
for  the  fulfilment  of  the  engagement ;  and  each  stockholder 
incurs  that  liability  to  the  creditor  the  moment  the  contract  of 
such  creditor  with  the  company  is  consummated.  When, 
therefore,  the  plaintiffs  sold  and  delivered  their  merchandize 
to  the  company  whereof  the  defendant  was  a  stockholder,  they 
acquired  a  right,  of  which  nothing  could  divest  them,  to  the 
liability  of  the  defendant  for  the  payment  of  the  price  of  the 
goods  ;  and  the  defendant  incurred  the  obligation  to  answer 
and  pay  the  debt  thus  contracted.  The  creditors  were,  it  is 
true,  required  by  the  10th  section  of  the  act  of  incorporation 
first  to  obtain  judgment  against  the  corporation  (unless  previ- 
ously dissolved)  for  their  demand,  and  to  cause  execution  to 
be  issued  thereon,  which  was  to  be  returned  unsatisfied,  in 
whole  or  in  part,  before  they  commenced  their  suit  therefor 
against  the  individual  stockholder  on  his  personal  liability- 


56        CASES  IN  THE  COURT  OF  APPEALS. 

Corning  v.  McCullough. 

But  this  provision  does  not  affect  the  right  of  the  creditor  to 
the  personal  liability  of  the  stockholder  for  his  debt,  nor  the 
obligation  of  the  stockholder  to  pay  the  same ;  nor  does  it  pre- 
vent the  liability  of  the  stockholder  to  the  creditor  from  at- 
taching and  becoming  perfect  on  the  consummation  of  the 
contract  of  the  creditor  with  the  corporation.  It  simply  de- 
fers the  remedy  by  action  upon  that  responsibility  until  the 
remedy  at  law  against  the  corporation  shall  be  exhausted,  or 
the  corporation  shall  have  been  dissolved.  The  intention  of 
it  is  to  secure  the  stockholder  from  an  immediate  recourse  to 
him  upon  his  personal  liability  when  the  corporation  may  be 
solvent  and  able  to  pay  the  debt,  and  the  creditor  may  have 
an  effectual  remedy  against  the  corporate  body  for  his  demand. 
The  substance  of  the  9th  section  is,  that  the  stockholders 
shall  be  jointly  and  severally  personally  liable  for  the  payment 
of  all  debts  contracted  by  the  company,  and  that  any  person 
having  a  demand  against  the  corporation  may  sue  any  stock- 
holder therefor,  and  recover  the  same  with  costs ;  and  the  10th 
section  provides  that  before  suit  shall  be  commenced  upon  any 
such  demand,  judgment  shall  have  been  obtained  against  the 
corporation  thereon,  and  execution  issued  and  returned  unsat- 
isfied, in  whole  or  in  part,  or  the  corporation  shall  have  been 
dissolved.  Upon  these  two  sections  taken  together,  the  per- 
sonal liability  of  the  stockholder  for  the  payment  of  the  debt 
is  immediate  and  absolute  the  moment  the  debt  is  contracted 
or  incurred  by  the  company ;  but  the  recourse  of  the  creditor 
by  suit  to  the  stockholder  upon  that  personal  liability,  is  de- 
ferred until  he  shall  have  first  exhausted  his  remedy  at  law 
against  the  corporation,  or  the  corporation  shall  be  dissolved. 

The  intention  of  the  Legislature  obviously  was  to  incorpo- 
rate the  company  with  a  qualified  corporate  capacity,  vesting 
general  corporate  powers  in  the  company,  but  leaving  the  stock- 
holders personally  liable  for  the  debts  of  the  corporation  ;  and 
to  effectuate  that  intention  it  was  necessary  to  qualify  the 
grant  of  a  corporate  capacity  to  contract  debts  by  a  provision 
that  the  stockholders  should  be  personally  liable  to  creditors 
therefor.  It  was  fully  understood,  that  under  a  general  unquali- 


NEW-YORK,  NOVEMBER,  1847.  57 


Corning  v.  McCullough. 


fied  incorporation  of  the  company,  the  debts  contracted  by  it 
in  its  corporate  capacity  would  be  the  debts  of  the  corporation 
and  not  the  debts  of  the  individuals  composing  the  company, 
and  that  the  stockholders  would  not  be  personally  answerable 
or  liable  therefor.  To  guard  against  this  irresponsibility  of 
the  stockholders  for  the  debts  of  the  company  consequent  upon 
an  unqualified  act  of  incorporation,  the  provision  was  inserted 
in  the  charter  for  preserving  the  personal  liability  of  the  stock- 
holders ;  but  as  that  provision,  if  permitted  to  have  its  fall 
legal  effect  and  operation,  would  expose  them  to  the  sui.tr-  of 
creditors  in  the  first  instance,  and  without  any  previous  appli- 
cation to  the  company  or  demand  of  payment  therefrom,  und 
would  moreover  subject  the  creditors  themselves,  when  driven 
to  their  recourse  tc  suits  against  the  stockholders,  to  grr/afc  and 
oftentimes  nearly  insuperable  difficulties  and  embarrassment  in 
the  pursuit  of  their  remedy  against  a  numerous  av».d  widely 
dispersed  body  of  stockholders,  it  was  deemed  expedient  to 
require  of  the  creditor  first  to  exhaust  his  reme^j  at  law  for 
the  recovery  of  his  debt  against  the  corporation  before  re- 
course should  be  had  by  him  to  the  stockholders,  ar,d  to  enable 
and  authorize  him,  when  such  recourse  should  l/ecome  neces- 
sary, to  take  his  remedy  and  prosecute  his  suit  against  all  or 
any  of  the  stockholders  of  the  company.  The^e  elementary 
provisions  are  incorporated  in  the  act  by  separate  sections 
from  the  enacting  clause,  whereby  the  company  is  in  form  in- 
vested with  its  corporate  capacity ;  and  upon  this  separation 
of  these  several  enactments  it  has  been  contended  that  the 
statute  is  to  be  understood  and  construed  as  intending  first  to 
incorporate  the  company  without  qualification,  thereby  vest- 
ing in  the  body  corporate  full  powers  to  contract  debts  in  its 
corporate  name  without  the  personal  responsibility  of  the 
stockholders  therefor,  but  exempting  them  therefrom,  and 
then,  by  the  subsequent  section  subjecting  them  to  a  new  and 
qualified  liability  for  the  same ;  and  hence  concluding  that  the 
remedy  on  such  new  liability  must  be  by  an  action  on  the 
statute.  To  this  exposition  of  the  statute  I  cannot  accede. 
It  is,  I  believe,  an  established  rule  of  construction,  that  the 


58  CASES  IN  THE  COURT  OF  APPEALS. 

Corning  v.  McCullough. 

different  parts  of  the  same  act  relating  to  the  same  subject, 
must,  unless  a  different  intent  is  so  palpable  as  to  admit  of  no 
question,  be  taken  together  and  construed  as  if  they  were  all 
in  the  same  section.  Upon  that  principle,  these  several  sec- 
tions of  this  act,  the  first  incorporating  the  company,  and  the 
ninth  and  tenth  qualifying  the  grant  of  corporate  powers  and 
capacity,  must  receive  the  same  construction  as  would  be  given 
to  them  if  they  had  all  been  incorporated  in  the  same  section 
of  the  statute.  We  cannot  impute  to  the  Legislature  the  de- 
sign or  intention  to  exempt  the  stockholders  by  the  incorpora- 
tion of  them,  from  personal  liability  for  the  debts  of  the  com- 
pany, and  then,  by  the  same  statute,  render  them  personally 
liable  for  the  same  debts.  We  apprehend  that  the  clear  in- 
tent was  to  invest  the  company  with  a  qualified  corporate  ca- 
pacity, and  not  to  confer  upon  the  stockholders,  either  directly 
or  indirectly,  as  the  consequence  of  such  incorporation  or 
otherwise,  any  exemption  or  immunity  from  personal  liability 
for  the  debts  of  the  company  to  be  contracted  in  its  corporate 
name  and  capacity. 

If  this  view  of  the  act  of  incorporation  be  correct,  and  the 
personal  liability  of  the  stockholder  for  the  debts  of  the  com- 
pany results  from  his  connection  with  the  company  as  a  mem- 
ber of  it,  participating  in  its  benefits  under  an  incorporation 
so  qualified  as  not  to  exempt  him  from  such  liability  for  its 
debts  or  to  protect  him  therefrom,  how  can  the  remedy  of  the 
creditor  upon  that  liability  be  by  an  action  on  the  statute  ?  or 
why  must  it  not  necessarily  be  by  an  action  on  the  case  at 
common  law  upon  the  liability  of  the  stockholder  for  the  debt 
of  the  company  or  copartnership,  of  which  he  is  a  member, 
and  against  which  the  incorporation  of  the  company  affords 
him  no  protection?  The  plaintiffs'  claim  is  not  for  a  forfeit- 
ure or  penalty  or  any  sura  of  money  or  thing  taken  from  the 
defendant  and  given  to  them  by  a  statute,  nor  upon  any  cause 
of  action  to  which  their  whole  and  sole  right  or  title  rests  upon 
a  statutory  provision  entitling  them  thereto,  but  for  a  debt 
contracted  by  the  sale  by  them  of  merchandize,  whereof  they 
were  the  owners,  to  a  company  of  which  the  defendant  was  n 


NEW-YORK,  NOVEMBER,  1847.  59 

Corning  v.  McCullough. 

member,  and  wherein  he  had  an  interest  as  one  of  its  stock- 
holders. 

But  the  sale,  it  is  said,  was  to  the  company  and  not  to  the 
defendant,  and  the  plaintiffs  had  full  notice  and  well  knew 
that  they  made  the  sale  to  a  corporate  body,  and  contracted 
the  debt  on  its  credit  and  responsibility.  The  sale,  it  is  true, 
was  to  the  company,  but  not  on  its  credit  exclusively,  but  on 
the  faith  and  credit  also  of  the  personal  liability  of  the  stock- 
holders for  the  debts  of  the  company.  The  liability  of  the 
defendant  upon  which  the  action  is  grounded,  is  for  the  pay- 
ment of  a  debt  of  the  company  incurred  by  the  purchase  of 
merchandize  of  the  plaintiffs,  for  the  use  and  benefit  of  the 
company,  and  wherein  the  defendant,  as  one  of  the  members 
of  the  company,  was  interested,  and  for  which  he  thereby  and 
under  the  provisions  of  the  charter  of  the  company,  became 
and  was,  concurrently  with  the  company,  from  the  inception  of 
the  debt,  personally  liable.  It  is  virtually  and  in  effect  a  lia- 
bility upon  a  contract,  and  the  mutual  agreement  of  the  par- 
ties ;  not  indeed  in  form  an  express  personal  contract,  but  an 
agreement  of  equally  binding  obligation,  consequent  upon  and 
resulting  from  the  acts  and  admissions  or  implied  assent  of 
the  parties.  The  company  made  the  purchase  of  the  goods 
of  the  plaintiffs  on  the  terms  and  security  authorized  by  the 
statute.  The  personal  liability  of  the  stockholders  for  the 
payment  of  the  debts  of  the  company,  was  one  of  the  terms 
of  purchase  authorized  by  the  statute.  It  was  consequently 
one  of  the  terms  of  the  sale  by  the  plaintiffs  of  their  goods  to 
the  company,  and  constituted  part  of  their  security  for  the 
payment  of  the  debt  thereby  incurred.  To  those  terms  and 
that  security  the  defendant,  by  becoming  and  being  at  the 
time  a  stockholder  of  the  company,  gave  his  assent  and  made 
himself  a  party  under  and  according  to  the  provisions  of  the 
charter,  and  the  plaintiffs,  by  the  acceptance  of  the  terms  of 
sale  and  the  delivery  of  the  goods  to  the  company,  entitled 
themselves  to  the  benefit  of  the  personal  liability  of  the  de- 
fendant as  a  stockholder  of  the  company  for  the  payment  of 
the  debt  contracted  by  the  purchase. 


60        CASES  IN  THE  COURT  OF  APPEALS. 


Corning  v.  McCullongh. 


But  it  is  objected  that  the  personal  liability  of  the  stock- 
holders under  the  statute,  differs  from  the  common  law  liabili- 
ty of  copartners ;  the  common  law  rule  subjecting  copartners 
to  a  joint  r2sponsibility,  and  the  statute  making  the  stock- 
holders of  the  company  jointly  and  severally  liable  for  the 
debts.  But  that  change  of  the  common  law  rule  of  responsi- 
bility by  the  statute,  as  applied  to  this  class  of  partners,  can- 
not vary  or  affect  the  principle  on  which  the  liability  rests. 
It  is  competent  to  the  Legislature  in  all  cases  to  amend, 
modify,  and  alter  the  rules  of  the  common  law,  whenever 
amendments  or  alterations  are  deemed  proper  and  expedient. 
Such  action  of  the  Legislature  is  of  frequent  occurrence,  but 
such  statutory  amendments  or  modifications  do  not  necessarily 
or  usually  abolish  the  rules  they  affect,  or  change  the  course 
of  the  common  law  in  relation  thereto  ;  and  as  a  general  rule 
the  pursuit  of  the  remedy,  in  such  cases,  where  the  amenda- 
tory statute  is  silent,  will  be  by  the  appropriate  common  law 
action,  and  not  by  an  action  on  the  statute.  Should  the 
Legislature  provide  by  statute  that  copartners  shall  be  lia- 
ble, jointly  and  severally,  to  creditors  on  their  contracts, 
and  that  any  one  or  more  of  them  might  be  sued  upon  their 
joint  contract  without  joining  the  others  in  the  suit,  must 
the  action  for  a  debt  accruing  after  the  alteration  of  the 
rule  of  responsibility,  if  brought  against  one  only  of  the  co- 
partners, be  brought  upon  the  statute  authorizing  the  action 
against  him  solely  as  being  necessarily  an  action  on  the 
statute,  or  might  it  not  be  brought  in  the  usual  form  of  a 
common  lawsuit  on  the  contract  or  for  the  debt  of  the  copart- 
icrship  ?  The  cause  of  action  in  such  case  against  the  co- 
partnership, would  exist  at  common  law,  arul  the  remedy 
against  the  one  partner  solely,  though  authorized  and  given 
by  statute,  would,  I  apprehend,  be  by  suit  at  common  law,  in 
pursuance  of  the  statute,  and  not  upon  the  statute  in  the 
technical  sense  and  meaning  of  those  terms.  And  if  the 
remedy  against  one  of  several  copartners  for  a  partnership 
debt,  under  a  general  statute  providing  for  and  authorizing 
the  same,  would  be  by  a  common  law  action,  on  the  same 


NEW-YORK,  NOVEMBER,  1847.  61 


Corning  v.  McCullough. 


principle  the  recourse  to  the  individual  stockholder  as  a  part- 
ner unprotected  by  the  act  of  incorporation,  and  subjected  to 
personal  liability,  might  also  be  by  a  common  law  action  on 
the  contract  of  the  company.  Then  how  can  this  action, 
having  for  its  object  the  recovery  of  a  debt  for  goods  sold  to 
a  company  of  which  the  defendant  was  a  member,  and  per- 
sonally liable  for  the  payment  of  its  debts,  and  which  action, 
in  no  just  sense  of  the  term,  partakes  of  the  character  of  eithe' 
forfeiture  or  penalty,  be  held  an  exception  out  of  the  class 
of  actions  of  assumpsit  and  on  the  case  to  which  it  so  na- 
turally belongs,  and  to  come  within  the  description  and  class 
of  actions  on  statute  ?  I  cannot  resist  the  conclusion,  that  it 
is,  in  truth  and  in  fact,  a  common  law  action  on  the  case,  for 
which  the  statute  limitation  of  six  years  is  provided,  and  not  an 
action  on  statute  subject  to  the  shorter  limitation  of  three  years 
for  its  commencement. 

But  suppose  it  can  be  regarded  in  any  sense  of  the  term  as 
an  action  on  statute,  is  it  an  action  for  a  forfeiture  or  cause, 
the  benefit  and  suit  whereof  is  limited  to  the  party  aggrieved, 
and  within  the  class  of  actions  to  which  the  limitation  of  three 
years  is  to  be  applied  ?  An  action,  to  come  within  the  31st 
section  of  the  chapter  entitled  "  of  actions  and  the  times  of 
commencing  them,"  must  be  an  action  on  a  statute  for  a  for- 
feiture or  cause,  the  benefit  and  suit  whereof  is  limited  wholly 
or  in  part  to  the  party  aggrieved.  The  purport  of  this  statu- 
tory provision,  especially  when  considered  in  connection  with 
those  which  immediately  precede  it,  referring  also  to  actions 
on  statutes,  and  the  language  in  which  these  provisions  are 
all  expressed,  indicate  clearly,  I  think,  the  intention  of  the 
Legislature  to  have  been  to  apply  them  to  forfeitures  and 
penalties,  arid  causes  of  action  of  the  like  character,  partaking 
of  the  nature  of  penal  actions.  The  whole  chapter  "of  ac- 
tions and  the  times  of  commencing  them,"  and  all  its  divisions 
and  enactments  touching  actions  on  statutes,  speak  that  lan- 
guage too  plainly,  I  think,  to  be  misunderstood.  The  first 
title  of  the  chapter  in  the  first  section  of  it  defines  and  de- 
clares the  actions  included  within  the  provisions  of  the  chap- 


62  CASES  IN  THE  COURT  OF  APPEALS. 

Corning  v.  McCullough. 

ter  to  be  either:  1.  Such  as  relate  to  real  estate*  2.  Those 
•which  may  be  brought  for  the  recovery  of  any  debt  or  demand, 
or  for  the  recovery  of  damages  only.  3.  Those  which  may 
be  brought  for  penalties  or  forfeitures.  4.  Suits  in  equity. 
The  18th  section  of  the  chapter,  being  the  first  division  of 
the  second  article  of  the  second  title,  contains  seven  subdivi- 
sions. By  the  first  of  them  all  actions  of  debt  founded  upon 
any  contract,  obligation  or  liability,  not  under  seal,  nor  upon 
a  judgment  or  decree  of  a  Court  of  Record,  as  therein  ex- 
pressed, and  by  the  fourth  subdivision  all  actions  of  account 
assnmpsit  or  on  the  case,  founded  on  any  contract  or  liability, 
express  or  implied,  are  to  be  commenced  within  six  years  next 
after  the  cause  of  such  action  accrued,  and  not  after.  And 
I  here  notice  the  very  comprehensive  terms  of  the  fourth  sub- 
division of  this  section  as  showing  it  to  have  been  purposely 
framed  and  intended  to  reach  and  comprehend  all  actions  on 
the  case,  of  every  description,  founded  on  any  liability  what- 
ever ;  and  that  it  must  be  held  to  extend  to  and  embrace  the 
action  now  before  us,  unless  the  same  be  shewn  or  plainly  ap- 
pears to  be  excepted  and  otherwise  provided  for  as  more  ap- 
propriately belonging  to  some  other  class  of  actions.  The 
third  article  of  the  second  title  of  the  chapter,  applies  to  ac- 
tions for  penalties  and  forfeitures,  and  is  entitled  "  of  the  time 
of  commencing  actions  for  penalties  and  forfeitures."  It 
consists  of  three  sections,  being  sections  29,  30  and  31  of  the 
chapter.  By  the  first  (being  section  29)  all  actions  upon  any 
statute  for  any  forfeiture  or  penalty  to  the  people  of  the  State, 
are  to  be  commenced  within  two  years  after  the  offence  shall 
have  been  committed  ;  by  the  second  (being  the  30th  section) 
all  actions  upon  any  statute  for  any  forfeiture  or  penalty  given 
in  whole  or  in  part  to  any  person  who  will  prosecute  for  the 
same,  are  to  be  commenced  within  one  year  after  the  offence 
shall  have  been  committed,  and  if  not  commenced  within  that 
time  by  any  private  citizen,  then  to  be  commenced  within  two 
years  after  that  year  ended  in  behalf  of  the  people  of  the  State; 
and  by  the  third  (being  the  31st  section)  all  actions  upon  any 
statute  for  any  forfeiture  or  cause,  the  benefit  and  suit  where- 


NEW-YORK,  NOVEMBER,  1847.  63 


Corning  v.  McCulIough. 


of  is  limited  to  the  party  aggrieved,  or  to  such  party  and  the 
people  of  the  State,  shall  be  commenced  within  three  years 
after  the  offence  committed  or  the  cause  of  action  accrued,  and 
not  after.  Thus  it  is  seen  that  the  statute  arranges  all  actions 
at  law  not  relating  to  real  estate  in  two  classes.  1.  Actions 
for  debtSj  demands  or  damages  only.  2.  Actions  for  forfeit- 
ures and  penalties.  And  that  the  3d  article  of  the  2d  title  of 
the  chapter,  which  relates  to  the  said  second  class  of  actions, 
namely,  penalties  and  forfeitures,  is  entitled  and  professes  to 
be  of  the  time  of  commencing  actions  for  penalties  and  for- 
feiture ;  thus  shewing  the  leading  and  general  intent  and  pur- 
pose of  the  Legislature  to  have  been  to  confine  the  actions 
coming  within  this  second  class,  to  penalties  and  forfeitures, 
and  to  apply  the  short  limitation  of  three  years  to  such  ac- 
tions only. 

But  it  is  contended  that  the  addition  of  the  word  "cause" 
to  that  of  "forfeiture,"  in  the  31st  section,  extends  the  pro- 
visions of  that  section  to  all  actions  for  any  cause,  and  upon 
any  statute,  whether  for  a  forfeiture  or  other  cause,  founded 
upon  statute  liability,  and  the  benefit  whereof  is  limited  to  the 
plaintiff  or  party  aggrieved.  To  this  broad  meaning  of  the 
term  is  opposed  the  narrower  acceptation  of  it  as  importing 
"causes"  of  the  same  nature  as  those  indicated  by  the  term 
"  forfeiture"  with  which  it  is  so  closely  associated  in  the  sec- 
tion— and  this  more  restricted  sense  of  the  term  strikes  me  as 
being  the  most  rational  exposition  of  it.  That  the  use  and 
application  of  that  indefinite  term  in  this  connection,  without 
any  superadded  words  of  restriction  or  explanation,  has  in- 
volved the  section  in  some  obscurity,  the  conflicting  opinions 
of  Jurists  and  learned  Judges  upon  it  sufficiently  testify.  But 
indefinite  as  it  is  in  itself,  it  may,  when  used  in  connection 
with  other  terms,  acquire  distinctive  features  indicating  the 
sense  intended  to  be  attached  to  it ;  and  as  used  and  applied 
in  this  section  it  must,  I  think,  from  its  juxta  position  to  the 
term  forfeiture,  from  the  omission  in  the  section  of  the  term 
penalty  from  the  relation  of  that  section  to  the  article  and 
chapter  to  which  it  belongs,  and  from  the  general  intention  of 


64  CASES  IN  THE  COURT  OF  APPEALS. 


Corning  v.  McCulIough. 


the  Legislature,  as  collected  from  the  language  used  in  de- 
scribing and  designating  the  classes,  and  the  character  of  the 
actions  in  their  contemplation  at  the  time,  as  those  to  which 
that  article  was  to  refer,  be  understood  and  held  to  apply  to 
penalties  and  to  such  causes  only  as  savour  of  forfeiture  or 
penalty,  and  which,  though  not  technically  and  in  name  pe- 
nalties, are  yet  in  substance  and  effect  penal  in  their  nature, 
and  calculated  and  operating  to  affect  the  party  exposed  to 
them  in  the  same  or  a  similar  manner  with  forfeitures  and  pe- 
nalties. 

That  exposition  of  the  meaning  of  the  term  receives  coun- 
tenance and  support  from  the  history  of  the  section  in  which 
it  occurs.  That  section  was  introduced  into  the  statute  of  limi- 
tations of  this  State,  on  the  first  revision  of  the  statute  law  of 
the  State,  by  Jones  &  Varick,  in  1788.  On  that  revision  the 
English  statutes,  then  understood  to  be  in  force  in  this  State, 
or  properly  applicable  to  us,  were  adapted  to  our  system  and  en- 
acted by  the  Legislature  into  the  statutes  of  this  State ;  and  the 
provisions  for  the  limitation  of  actions  on  statutes  for  forfeit- 
ures limited  to  the  people,  and  to  common  informers  contain- 
ed in  the  act  for  the  limitation  of  criminal  prosecutions  and  of 
actions  and  suits  at  law,  then  passed  by  the  Legislature  of  this 
State,  were  taken  from  the  English  statute,  entitled  an  act  con- 
cerning informers  of  the  31st  Elizabeth,  ch.  v,  sec.  5.  But  that 
statute  contained  no  clause  or  provision  for  the  limitation  of 
the  time  for  the  commencing  of  actions  on  statute  for  forfeitures 
or  penalties,  the  benefit  whereof  was  limited  or  given  to  the 
party  aggrieved.  Nor  was  there  any  statute  then  existing 
and  in  force  in  this  State  or  in  England,  containing  any  pro- 
vision for  the  limitation  of  the  time  of  the  commencement  of 
that  class  of  actions  on  statute.  It  was  to  supply  this  omis- 
sion of  the  English  statutes,  that  the  clause  of  the  13th  section 
of  the  act  of  1788,  providing  that  all  actions,  suits,  bills  or 
informations  for  any  forfeiture  or  cause  on  any  statute,  the 
benefit  or  suit  whereof,  was  given  to  the  party  aggrieved  should 
be  commenced  within  three  years  after  the  offence  committed 
or  cause  of  action  accrued,  was  passed  by  the  revisers,  and 


NEW-YORK,  NOVEMBER,  1847.  65 

Corning1  v.  McCullough. 

inserted  in  the  act  which  was  then  passed  by  the  Legislature. 
It  was  a  new  provision,  and  was  the  same  in  substance  and 
in  nearly  the  same  words  when  first  created,  as  it  now  exists 
in  the  section  to  which  we  have  so  often  had  occasion  to  ad- 
vert. The  provision  as  first  adopted,  has  gone  through  the 
several  subsequent  revisions  of  the  statute  law  of  the  State 
unchanged,  and  without  any  question  having  ever  arisen  upon 
its  construction,  but  we  believe  with  the  generally  received 
opinion,  that  the  intention  of  it  was  to  provide  and  apply  a 
rule  or  time  of  limitation  to  actions  on  statute  by  the  party 
aggrieved,  for  the  same  or  similar  causes  with  those  for  which 
actions  were  given  to  the  people  or  to  common  informers,  but 
that  it  was  not  the  intention  of  the  Legislature  or  the  purpose 
of  the  new  provision  to  limit  the  time  for  the  commencement 
of  actions  on  statutes  by  the  party  aggrieved  to  a  shorter  period 
than  six  years  in  other  cases  than  those  of  forfeiture  and  pe- 
nalty, and  causes  of  the  same  nature  therewith,  and  analogous 
thereto.  When  the  action  of  the  party  aggrieved  is  for  a  for- 
feiture or  penalty,  it  is  of  course  upon  the  statute,  and  when 
for  a  specific  sum  or  definite  measure  of  indemnity  or  recom- 
pense, which  is  the  form  the  statute  sometimes  gives  to  the 
remedy  it  provides,  the  action  may  still  be  upon  the  statute ; 
but  if  such  remedy  be  given  for  a  wrong  or  injury  which  is 
actionable  at  common  law,  and  the  party  has  his  election  be- 
tween the  common  law  action  and  the  statute  remedy,  and 
chooses  to  betake  himself  to  his  statute  remedy,  instead  of 
bringing  his  action  at  common  law,  for  the  recovery  of  damages 
generally  upon  his  proof  before  a  jury  at  the  trial,  the  short 
limitation  of  three  years  may  be  applied  to  him,  though  if  he 
had  been  content  with  his  remedy  by  the  common  law  action, 
it  would  not  have  been  applicable.  But  there  is  a  class  of 
actions  and  causes  of  action  which  involves  statutory  provi- 
sions in  a  greater  or  less  degree,  but  which  though  the  statute 
is  a  necessary  link  in  the  chain  of  title  to  the  remedy,  and 
they  may  to  some  intents  be  said  to  be  under  the  statute,  are 
not  in  the  legal  acceptation  of  the  terms,  actions  upon  the 

statute  within  the  meaning  of  the  limitation  acts.     I  under- 

y 


66  CASES  IN  THE  COURT  OF  APPEALS. 

Corning  v.  McCuIlough. 

stand  the  rule  to  be,  that  to  bring  a  case  within  any  class  of 
actions  on  statute  to  which  the  short  limitation  time  of  com- 
mencing them  is  applicable,  the  cause  of  action  must  be 
created  or  given  by  the  statute,  or  the  action  must  be  upon  the 
statute  solely ;  that  if  the  cause  of  action  or  remedy  be 
partly  at  common  law  and  partly  by  statutory  provisions, 
the  short  limitations  prescribed  for  the  times  of  commencing 
action  on  statutes  do  not  apply  unless  the  cause  of  action  be 
penal  in  its  nature,  or  there  be  no  other  limitation  provided 
by  law  adapted  to  the  case.  To  this  class  of  actions  partly 
at  common  law  and  partly  on  statutory  provisions,  the  present 
action,  if  in  any  sense  or  degree,  upon  statutes  would  belong. 
The  liability  of  this  defendant  to  these  plaintiffs  is  neither  for 
a  penalty  inflicted  upon  him  for  any  offence  committed  by  him 
nor  for  any  forfeiture  incurred  by  him,  nor  does  it  possess  any 
element  or  feature  of  a  penal  character  assimilating  it  to  either 
forfeiture  or  penalty.  It  cannot  therefore  be  brought  within 
the  provisions  of  the  31st  section,  and  the  short  limitation  of 
three  years  be  applied  to  it,  unless  the  use  of  the  statute 
showing  the  qualified  corporation  it  creates  as  evidence  to 
connect  the  defendant  as  a  stockholder,  with  the  plaintiff's 
sale  and  delivery  of  the  goods  to  the  company  can  be  held  to 
characterize  it  as  an  action  upon  the  statute. 

But  we  are  referred  to  the  difference  in  the  phraseology  of 
this  31st  section,  from  that  of  the  two  sections  immediately 
preceding  it,  as  conflicting  with  our  exposition  of  the  mean- 
in^  of  them.  We  are  reminded  that  in  each  of  the  two  that 

O 

precede,  the  word  penalty  is  added  to  that  of  forfeiture,  but 
that  in  this,  the  word  penalty  is  omitted,  and  the  term  "cause" 
left  to  stand  in  its  place,  whence  we  are  asked  to  infer  that 
the  Legislature  on  the  last  revision  intended,  in  accordance 
with  the  spirit  of  the  act  of  1788,  as  they  understood  it,  to 
confine  the  limitation  in  the  two  sections  that  precede  the  31st 
strictly  to  forfeitures  and  penalties,  but  to  extend  that  of  the 
31st  section  beyond  both  forfeitures  and  penalties  to  other 
causes,  and  necessarily  in  the  absence  of  all  restriction  to 
action  on  statute  for  any  cause  whatsoever.  And  as  a  further 


NEW-YORK,  NOVEMBER,  1847.  67 

Corning  v.  McCullough. 

ground  for  the  conclusion  that  such  was  the  understanding  and 
intention  of  the  Legislature  in  the  introduction  and  in  the 
continuance  of  the  new  provision,  it  is  suggested  and  urged, 
that  as  the  Legislature  on  both  occasions,  as  well  in  framing 
a  general  statute  for  the  limitation  of  times  of  commencing 
action,  as  on  the  renewal  and  continuance  of  the  same,  have 
made  use  of  terms  in  reference  to  this  particular  class  of  actions 
sufficiently  broad  to  embrace  the  whole  of  the  class,  they  are 
to  be  presumed  to  have  intended  to  apply  the  rule  prescribed 
to  the  whole  of  that  class  rather  then  to  be  presumed  to  have 
meant  to  confine  it  to  a  part  only  of  the  class.  This  reason- 
ing has  force  when  applied  to  a  case  where  no  reason  exists 
for  fixing  a  different  limitation  of  time  to  some  actions  of  that 
class  from  that  which  is  applied  to  others.  But  is  this  such  a 
case  ?  The  3 1st  section  is  one  of  three  sections  of  an  article 
entitled  "  of  the  time  of  commencing  actions  for  penalties  and 
forfeitures,"  and  the  general  intention  of  the  Legislature,  as 
indicated  by  this  designation  of  the  purpose  of  the  article, 
might  be  taken  to  have  been  to  apply  the  rules  of  limitations 
its  sections  prescribe  to  actions  for  forfeitures  and  penalties 
only,  and  the  last  sections  of  the  article  relating  to  actions  by 
the  party  aggrieved,  to  conform  it  to  that  general  intent  would 
in  strictness  be  confined  to  the  same  causes  of  action  as  the 
two  sections  that  precede  it ;  but  as  the  party  aggrieved  may 
have  causes  of  action  upon  the  statute  against  aggressors  com- 
ing within  the  spirit,  though  not  within  the  letter  of  the  article, 
the  word  "cause"  used  instead  of  "penalty,"  may  well  be  un- 
derstood as  being  substituted  for  that  term  with  intent  to  ex- 
tend the  provision  to  cases  penal  in  their  nature,  though  not 
in  strictness  and  technically  either  penalties  or  forfeitures. 
But  between  these  actions  on  statutes  for  the  benefit  of  the 
party  aggrieved,  and  the  class  to  which  I  have  before  adverted 
as  being  partly  on  statutory  provisions  and  partly  at  common 
law,  for  causes  not  in  the  nature  of  a  forfeiture,  but  for  the 
recovery  of  a  debt  or  damages,  and  actions  also  for  rights 
or  remedies  of  a  civil  nature  which  statutes  may  originate  or 
authorize,  but  which  enable  and  entitle  the  prosecutor  to  re- 


68       CASES  IN  THE  COURT  OF  APPEALS. 


Corning  v.  McCullough. 


cover  the  common  law  measure  of  damages,  and  not  a  fixed 
statutory  recompense  for  the  wrong  or  injury  of  the  aggressor, 
there  is  a  wide  and  marked  distinction,  and  for  this  distinc- 
tion there  is  abundant  reason.     It  is  the  policy  of  the  statute 
to  limit  the  commencement  of  actions  for  forfeitures  and  pe- 
nalties to  shorter  periods  of  time  than  actions  on  contracts  and 
for  vested  rights  and  legislative  enactments,  subjecting  the 
aggressor  to  a  specific  measure  of  damages  or  a  specific  com- 
pensation, for  the  injury  he  causes  may  be  in  their  nature 
penal,  and  come  properly  within  the  provisions  of  this  31st 
section,  but  rights  and  remedies  of  a  purely  civil  nature  which 
may  be  vested  by  statute  in  individuals,  or  which  parties  may 
acquire  under  statutory  provisions  partake  in  no  degree  of  for- 
feiture or  penalty,  but  are  equally  meritorious,  and  entitled 
to  the  same  favor  as  rights  upon  contracts  or  other  acquisi- 
tions, and  actions  upon  them  are  equally  within  the  reason 
and  policy  of  the  six  years'  rule  of  limitation,  as  actions  upon 
contract,  and  cannot  justly  be  confined  to  the  narrower  rule 
of  three  years  limitation  prescribed  for  penal  actions.     I  can- 
not reconcile  with  the  views  I  take  of  the  general  policy  and 
principles  of  the  article  entitled  "of  the  time  of  commencing 
actions  for  penalties  and  forfeitures,"  and  the  special  provi- 
sions of  the  different  sections  of  that  article,  the  supposition  or 
belief  that  the  framers  of  it  could  intend  to  apply  the  short 
bar  of  three  years  limitation  to  all  actions  upon  statute,  or 
under  statutory  provisions  by  parties   suing  for   their  own 
benefit,  without  discrimination  or  exception.     I  must  believe 
that  the  intention  was  to  confine  the  three  year  limitation  to 
actions  by  tho  party  aggrieved,  for  penalties  and  forfeitures 
and  analogous  causes  of  action  of  a  penal  nature,  and  not  to 
extend  that  bar  to  civil  actions  for  rights  and  on  remedies 
resulting  from,  or  accruing  under  statutory  provisions,  not 
imposing  upon  aggressors  or  offenders  any  specific  amount  or 
rate  of  compensation  or  recompense,  but  leaving  them  to  this 
common  law  liability  and  the  common  law  measure  of  damages 
consequent  thereon.     Under  these  views  of  our  system    of 
limitation    of    suits    and    actions,    the    use    and   importance 


NEW-YORK,  NOVEMBER,  1847.  69 

Corning  v.  McCulIough. 

of  the  term  "cause"  superadded  by  the  first  revisers  to  the 
term  "forfeiture"  in  the  new  section  introduced  by  them,  is 
manifest.  The  provision  might  have  been  imperfect,  or  open 
to  misconstruction  without  it.  The  term  "forfeiture"  might 
suffice  to  describe  the  actions  to  which  the  two  preceding  sec- 
tions were  to  apply,  but  might  not  be  held  to  embrace  all  the 
causes  of  action  to  which  the  new  section  was  to  extend,  and 
the  addition  of  the  term  penalty  might  not  sufficiently  enlarge 
its  range,  but  the  term  "cause"  was  sure  to  be  effectual,  and 
rightly  understood  and  applied,  would  extend  the  limitation 
prescribed  by  the  section  to  penalties  and  all  analogous  causes 
partaking  of  the  nature  of  forfeitures,  but  would  carry  it  no 
further. 

In  this  connection  it  may  be  noted,  that  the  indefinite  term 
"cause"  being  immediately  preceded  in  the  sentence  by  the 
term  forfeiture,  may,  if  the  intention  of  the  Legislature,  and 
the  adaptation  of  the  particular  provision  to  the  general 
character  and  purpose  of  the  article  and  chapter  of  which  it 
is  parcel  should  require  it,  be  understood  and  construed  ac- 
cording to  the  maxim,  noscitur  a  sociis,  as  meaning  something 
of  the  same  or  like  nature  with  forfeiture  and  analogous 
thereto.  The  section  so  construed  provides,  that  "  all  actions 
upon  any  statute  for  any  forfeiture  or  cause  of  the  same  or 
like  nature,  the  benefit  and  suit  whereof  shall  be  limited  to 
the  party  aggrieved,  &c.,  shall  be  commenced  within  three 
years  next  after  the  offence  committed  or  the  cause  of  action 
accrued."  That  construction  reconciles  the  section  to  the 
heading  or  title  of  the  article  to  which  it  belongs,  and  con- 
forms it  to  the  classification  that  heading  imports  of  the  ac- 
tions to  which  the  times  of  limitation  the  article  prescribes  are 
to  apply  as  being  actions  for  penalties  and  forfeitures,  and 
harmonizes  moreover  with  the  ordinary  acceptation  of  the 
terms,  "  party  aggrieved,"  so  emphatically  applicable  to  those 
who  suffer  from  the  aggressions  of  others,  but  so  inappropri- 
ate and  rarely  applies  to  plaintiffs  and  parties  who  prosecute 
on  contracts  and  liabilities  for  debts  and  damages. 

If  the  causes  of  action  to  which  this  section  is  intended  to 


70       CASES  IN  THE  COURT  OF  APPEALS. 


Corning  v.  McCullough. 


apply  cannot  be  by  the  settled  rules  of  construction  confined 
to  causes  of  a  penal  nature,  what  bounds  can  be  set  to  the 
section  ?  If  it  is  held  to  apply  to  all  actions  on  any  statute 
remedial  or  penal  for  any  cause  involving  any  statutory  pro- 
vision, and  being  for  the  benefit  of  the  plaintiff  or  party  ag- 
grieved, will  it  not  be  made  to  comprehend  large  classes  of 
actions  which  have  never  yet  been  understood  or  supposed  to 
come  within  it  ?  May  not  liabilities  clearly  within  the  reason 
and  the  very  letter  of  the  4th  subdivision  of  the  18th  section, 
and  always  regarded  and  treated  as  being  unquestionably  en- 
titled to  the  benefit  of  the  full  term  of  six  years  for  the  com- 
mencing of  actions  upon  them,  be  brought  within  the  range 
of  the  narrower  rule  of  this  thirty-first  section  and  restricted 
to  the  shorter  term  of  its  three  years  limitation  ?  The  in- 
stances adduced  by  the  counsel  for  the  plaintiffs  in  error,  to 
exhibit  and  illustrate  the  practical  effect  and  operation  of  such 
an  exposition  of  this  section  of  the  statute,  are  so  appropriate 
and  so  striking  that  I  deem  it  superfluous  to  extend  them  or  to 
dwell  upon  them.  Among  them  I  notice  the  remedy  given 
by  statute  to  the  endorsee  against  the  maker  and  endorser  of  a 
promissory  note,  which  was  an  innovation  upon  the  common  law 
system,  and  purely  by  statutory  authority.  It  not  only  gave 
a  new  remedy  on  the  note,  but  changed  essentially  its  charac- 
ter and  its  properties,  and  altered  materially  the  rights  and 
liabilities  of  the  parties  to  it.  When  first  introduced,  a  re- 
ference to  the  statute  authorizing  it  was  deemed  necessary  in 
actions  under  the  statute  upon  the  note ;  but  the  suit  or  ac- 
tion itself  was  from  the  first  and  always  has  been,  and  not- 
withstanding the  introduction  into  our  statutes  of  limitation 
of  the  new  and  additional  provision  contained  in  this  thirty- 
first  section,  has  continued  to  be,  and  now  is  with  us  as  in 
England  the  common  law  action  of  assumpsit  or  trespass  on 
the  case,  upon  the  contract  which  the  note,  in  the  statutory 
sense  and  effect  of  it  imports,  and  the  statute  limitation  of 
six  years  held  to  apply  to  it.  So  too  the  other  cases  cited, 
of  actions  by  and  in  the  name  of  the  assignee  of  a  chose  in 
action  where  the  assignor  is  dead,  and  there  is  no  executor  or 


NEW-YORK,  NOVEMBER,  1847.  71 

Corning  v.  McCullough. 

administrator ;  actions  by  and  in  the  name  of  the  purchaser 
of  a  chose  in  action  at  a  receiver's  sale ;  actions  by  and  in 
the  name  of  an  assignee  of  a  bond  to  the  Sheriff;  by  and  in 
the  name  of  the  assignee  of  a  lessor  against  the  lessee  upon 
covenants  in  the  lease ;  against  the  maker  and  endorser  of  a 
promissory  note  jointly ;  by  the  creditors  of  a  deceased  per- 
son against  the  heirs,  devisees,  legatees,  and  next  of  kin  ;  by 
purchasers  of  real  estate  sold  on  execution  against  the  owner 
of  the  judgment  on  the  failure  of  title  ;  by  mechanics  against 
the  owner  of  a  building  to  enforce  a  statutory  lien  for  a  debt 
due  from  the  contractor ;  and  actions  against  the  owner  of  a 
carriage  for  the  malicious  act  of  the  driver,  are  prominent  in- 
stances of  remedies,  and  some  of  them  of  rights  created  or 
given,  improved  or  varied,  by  statute,  but  for  and  upon  which 
common  law  actions  are  in  familiar  use,  and  the  six  years 
term  of  limitation  constantly  applied.  For  aught  that  I  can 
see,  the  action  in  the  case  now  before  us  is  as  far  removed  as 
any  of  these  from  the  legitimate  range  of  the  short  limita- 
tion ;  for  it  is  substantially  and  in  effect  an  action  for  the  price 
or  value  of  merchandize  sold  and  delivered  by  the  plaintiffs 
to  a  company  of  which  the  defendant  was  a  member,  and  for 
the  debts  of  which  he  is  by  law  adapted  by  statutory  provi- 
sions to  the  case,  personally  and  individually  liable.  And  if 
this  action  must  be  held  to  come  within  the  31st  section,  and 
not  within  the  4th  subdivision  of  the  18th  section,  and  the  short 
bar  of  the  three  years  limitation  must  be  applied  to  it,  I  am 
yet  to  learn  why  it  is  that  the  same  principle,  if  fairly  and 
fully  carried  out,  would  not  embrace  those  cases  also,  and  all 
others  of  a  similar  character.  The  results  of  such  an  expan- 
sive application  of  the  terms  of  this  section,  and  the  wide 
range  of  the  short  statute  bar  consequent  upon  it,  must,  I 
think,  be  decisive  against  that  exposition  of  it,  if  the  language 
of  the  statute  admits  of  any  other  construction. 

But  we  are  told  that  the  short  bar  of  three  years  has  been 
formerly  decided  to  apply  to  a  case  similar  in  its  leading  fea- 
tures to  this ;  and  we  are  referred  to  the  case  of  Van  Hook 
vs.  Whitlock  as  establishing  the  rule.  In  that  case  the  credi- 


72  CASES  IN  THE  COURT  OF  APPEALS. 

Corning  v.  McCullough. 

tors  of  the  Commercial  Insurance  Company  of  New  York 
filed  a  bill  in  the  Court  of  Chancery  against  stockholders  of 
the  company,  to  charge  them  with  debts  of  the  company,  on 
the  ground  of  a  personal  liability  under  a  special  clause  in  the 
act  of  incorporation.  The  defendants  took  two  grounds  of 
defence  to  this  suit,  the  statute  of  limitations,  and  a  discharge 
from  the  liability  under  an  act  of  the  Legislature,  authorizing 
the  discharge  of  insolvent  insurance  companies  and  their  stock- 
holders from  the  debts  of  the  company  upon  making  an  as- 
signment of  the  corporate  estate  and  effects  for  the  benefit  of 
the  creditors,  they,  the  defendants,  averring  that  such  assign- 
ment had  been  made  and  that  the  complainants  had  accepted 
and  received  dividends  under  it.  The  Vice  Chancellor  of  the 
First  Circuit,  before  whom  the  question  first  came,  sustained  the 
defence  of  the  statute  of  limitation.  He  held  that  the  clause 
establishing  the  short  bar  of  three  years  limitation  was  not  con- 
fined to  penal  action,  or  such  as  might  be  brought  for  a  forfeit- 
ure, but  applied  to  actions  for  any  cause  and  upon  any  statute 
whatever,  for  a  forfeiture  or  other  cause  founded  upon  statute 
liability  and  given  or  limited  to  the  party  aggrieved.  That  the 
action  before  him  fell  directly  within  the  letter  and  spirit  of 
that  clause,  and  it  not  having  been  brought  within  three  years 
next  after  the  cause  of  action  accrued,  he,  on  those  grounds, 
without  passing  upon  the  other  questions  in  the  cause,  dismiss- 
ed the  complainant's  bill.  The  Chancellor  on  an  appeal  to  him 
inclined  to  the  same  opinion  and  confirmed  the  Vice  Chan- 
cellor's decision.  From  the  Chancellor's  decree,  the  plaintiffs 
appealed  to  the  Court  for  the  Correction  of  Errors,  and  the 
appeal  came  on  to  be  heard  by  that  Court  in  1841,  when  the 
decree  of  the  Chancellor  was  affirmed,  not  on  the  ground  taken 
by  the  Vice  Chancellor  and  approved  by  the  Chancellor,  but 
upon  the  other  branch  of  the  defence.  The  affirmance  was 
upon  the  ground  that  the  creditors  who  were  prosecuting  the 
suit,  had  affirmed  the  validity  of  the  assignment  by  receiving 
dividends  under  it.  That  although  the  statute  under  which  the 
assignment  was  made  was  unconstitutional  and  void,  as  to 
creditors  whose  demands  existed  previous  to  the  passage  of  the 


NEW-YORK,  NOVEMBER,  1847.  73 

Corning  v.  McCullough. 

act,  still,  that  the  creditors  having  come  in  and  accepted 
dividends  under  the  assignment,  had  assented  thereto  and 
affirmed  it,  and  that  they  could  not  afterwards  avail  them- 
selves of  the  personal  responsibility  of  the  stockholders  under 
the  charter  for  the  payment  of  the  debts  of  the  company. 
Upon  the  point  which  is  alledged  to  have  involved  the  ques- 
tion now  before  us,  on  the  application  of  the  statute  of  limi- 
tation to  the  case,  no  decision  was  made,  and  no  opinion  was 
expressed  by  the  court.  But  Chief  Justice  Nelson,  then  of 
the  Supreme  Court  of  this  State,  now  one  of  the  Judges  of  the 
Supreme  Court  of  the  United  States,  who  delivered  the  opin- 
ion of  the  Court  for  the  Correction  of  Errors  on  that  occasion, 
adverting  to  the  question  of  the  statute  of  limitations,  observed 
that  he  did  not  intend  to  discuss  that  question,  not  deeming 
it  material  to  the  view  he  had  taken  of  the  case,  but  that  he 
felt  bound  to  present  it  for  the  purpose  of  entering  his  dissent 
to  the  construction  attempted  to  be  given  to  the  clause.  "  If 
it  really  possesses  the  sweeping  effect  claimed,"  observed  the 
learned  Judge,  "for  ought  I  see  it  would  present  a  short  bar 
of  three  years  to  any  action  and  cause  of  action  arising  out 
of,  and  founded  upon  any  statutory  regulation."  He  instanced 
the  case  of  suits  against  the  the  President  of  Associations  un- 
der the  general  banking  law,  as  being  as  completely  founded 
upon  statute  and  the  creditor  as  much  aggrieved  by  the  non- 
payment of  his  debt  as  could  be  predicated  of  the  case  then 
under  consideration,  and  if  the  three  years'  bar  was  applicable 
to  the  one,  he  did  not  see,  he  said,  how  it  could  be  consistently 
denied  to  the  other.  This  was  the  only  opinion  given,  and 
from  its  decisive  tone,  and  the  clear  and  very  decided  opinion 
it  expressed  with  the  manner  of  announcing  it,  and  the  silence 
of  the  other  members  of  the  Court,  it  may  be  fairly  taken  if 
not  to  express  the  views  of  the  Court  on  the  subject,  at  least 
to  indicate  the  absence  of  all  intention  of  that  Court  to  affirm 
the  opinion  of  the  Courts  that  preceded  it  on  this  point.  The 
decision  therefore  of  the  Court  of  Chancery  in  that  case  on 
the  point,  though  entitled  to  our  respectful  consideration,  is 
not  binding  upon  us,  and  my  own  reflections  on  the  subject 


74  CASES  IN  THE  COURT  OF  APPEALS. 

Corning  v.  McCullougb. 

upon  the  fullest  consideration  I  have  been  able  to  give  it,  have 
led  me  to  a  different  conclusion.  To  this  conclusion,  and  the 
views  taken  by  this  Court  of  the  provision  now  under  review, 
the  learned  Chancellor  himself  would  appear,  from  his  opinion 
on  the  point,  when  the  question  was  before  him,  not  to  be 
irreconcilably  adverse  or  very  strongly  opposed.  He  concur- 
red, it  is  true,  in  the  decision  of  the  Vice  Chancellor,  and  sug- 
gested considerations  certainly  not  without  weight,  in  favor 
of  the  Vice  Chancellor's  exposition  of  the  clause  in  question ; 
but  he  at  the  same  time  conceded  that  it  is  very  doubtful 
whether  the  Legislature  by  that  provision,  intended  to  include 
any  of  that  class  of  actions  which  are  founded  partly  upon 
the  common  law  and  partly  upou  statutory  provisions,  and 
which  are  not  in  the  nature  of  a  forfeiture,  and  which  class  of 
actions  was  already  provided  for  in  the  previous  sections  of  the 
act.  From  these  intimations  we  may,  I  think,  fairly  infer 
that  the  exposition  of  the  statute  which  this  significant  doubt 
suggests,  would  not  be  regarded  by  him  as  wholly  inadmis- 
sible, and  that  exposition  would  effectually  except  and  exclude 
the  case  now  under  consideration  from  the  rule  to  which  the 
Supreme  Court  adheres  ;  for  the  personal  liability  imputed  to 
this  defendant  is,  at  most,  but  partly  founded  on  statutory 
provisions,  is  not  in  the  nature  of  a  forfeiture,  and  is  amply 
provided  for  in  the  previous  18th  section  of  the  chapter.  The 
construction  of  this  31st  section,  and  the  term  "cause"  as  used 
therein,  suggested  by  the  strongly  expressed  doubt  of  the 
Chancellor,  certainly  approaches  very  near,  if  it  does  not  come 
fully  up  to  the  standard  of  the  exposition  herein  given  of 
them. 

But  if  our  construction  of  the  clause  should  confine  it  to  still 
narrower  limits,  I  am  satisfied  that  the  sense  and  meaning  we 
attach  to  it  is  not  too  restrictive.  It  is  an  exposition  of  it, 
which,  in  my  judgment,  gives  it  all  the  efficacy  and  extension 
required  to  fill  up  the  space  in  the  system  of  limitation  of  the 
times  of  commencing  actions  on  statutes  left  by  the  statute  of 
Elizabeth,  and  which  it  was  the  purpose  of  the  new  provision 
of  the  act  of  1788  to  supply.  It  reconciles  the  31st  section 


NEW  YORK,  NOVEMBER,  1847.  75 

Corning  v.  McCullough. 

with  the  4th  subdivision  of  the  18th  section  of  the  chapter  of 
the  revised  statutes  providing  for  the  limitation  of  the  times 
of  commencing  actions,  gives  distinct  but  appropriate  and  suf- 
ficiently full  effect  to  both,  and  it  vindicates  the  statute  from 
the  reproach  of  subjecting  actions  for  rights  and  interests 
founded  on  good  and  valuable  considerations  acquired  under 
or  rendered  more  effectual  by  statutory  provisions  to  the  same 
short  bar  of  limitation  with  actions  for  penalties.  The  ac- 
tion of  these  plaintiffs  is  for  the  value  of  merchandize,  sold  and 
delivered  by  them  to  a  company  of  which  the  defendant  was 
a  member,  and  which,  though  possessing  a  corporate  capacity 
by  the  fundamental  law  of  its  corporate  existence,  operated 
and  contracted  on  the  personal  liability  of  its  stockholders 
as  well  as  the  corporate  responsibility  of  the  company  for  the 
payment  of  its  debts.  The  contract  being  with  the  company, 
a  reference  to  the  statute  became  necessary  in  order  to  show 
the  connection  of  the  stockholder  therewith,  and  with  the 
liability  it  created,  but  the  liability  thus  shown  not  being  for 
any  penalty  or  forfeiture  incurred  by  the  stockholders,  nor 
any  cause  in  any  wise  penal  in  its  nature,  but  for  the  debt 
contracted  by  the  purchase  of  the  goods,  comes  clearly  within 
the  letter  and  spirit  of  the  4th  subdivision  of  the  18th  section, 
and  the  provision  of  the  31st  section  does  not  extend  to,  or  em- 
brace it.  The  action,  therefore,  not  being  upon  the  statute  for  a 
cause  within  the  31st  section  of  the  chapter,  the  short  bar  of 
three  years  limitation  prescribed  by  that  section  is  not  ap- 
plicable to  it,  and  the  demurrer  to  the  defendant's  special  plea 
was  well  taken  and  ought  to  have  been  allowed.  The  judg- 
ment of  the  Supreme  Court  must  be  reversed. 

BRONSON,  J.  I  concur  fully  in  the  opinion  which  has  just 
been  delivered  by  my  brother  Jones,  and  will  add  only  a  few 
words  by  way  of  explanation.  This  case  was  only  brought  be- 
fore the  Supreme  Court  pro  forma,  as  the  question  had  been 
previously  decided  in  Freeland  v.  McCullough,  1  Denio,  414. 
That  case  was  not  fully  argued ;  and  when  it  was  decided, 
one  of  the  principles  which  had  been  settled  in  relation  to  this 


76  CASES  IN  THE  COURT  OF  APPEALS. 


Corning  v.  McCullough. 


class  of  cases  was  entirely  absent  from  my  mind.  Had  it  been 
mentioned  or  thought  of,  I  could  not  have  concurred,  as  I  did, 
in  the  judgment  which  was  rendered  by  the  Supreme  Court. 
It  had  been  several  times  held,  that  the  stockholders  of  thia 
and  other  like  companies,  stood  substantially  upon  the  same 
footing  as  to  liability  as  though  they  had  been  partners,  or  an 
unincorporated  association ;  that  they  were  answerable  to  the 
creditors  of  the  company  as  original  and  principal  debtors, 
though  the  creditors  were  first  to  exhaust  their  remedy  against 
the  corporation.  (Allen  vs.  Sewall,  2  Wend.  338  ;  JExparte 
Van  Eiper,  20  id.  614 ;  Moss  vs.  Oakley,  2  Hill  265,  269  ; 
Bailey  vs.  Banker,  3  id.  188;  Harger  vs.  McCullough,  2 
Denio,  119,  123.)  In  this  view  of  the  matter  it  is  entirely 
clear,  that  the  three  years  statute  of  limitations  is  not  ap- 
plicable to  the  case.  I  am  therefore  of  opinion  that  the 
judgment  of  the  Supreme  Court  should  be  reversed,  and 
that  judgment  should  be  rendered  for  the  plaintiffs  on  the 
demurrer. 

Ordered  accordingly. 
JBWETT,  Ch.  J.  dissented. 


NEW-YORK,  NOVEMBER,  1847.  77 


Wood  v.  Weiant. 


77 

WOOD  vs.  WEIANT  and  others.  s    HA   172 

The  act  of  1833,  (laws  of  1833,  ch.  271,  §  9)  in  relation  to  the  proof  and  acknow- 
ledgement of  written  instruments,  has  not  changed  the  provision  of  the  Revised 
Statutes  which  requires  a  certificate  of  the  County  Clerk  in  order  to  entitle  a 
conveyance  of  real  estate,  proved  or  acknowledged  before  a  Commissioner  of 
Deeds  or  County  Judge  not  of  the  degree  of  counsellor,  to  be  read  in  evi- 
dence or  recorded  in  any  other  county  than  that  in  which  the  Commissioner 
or  Judge  resides . 

Accordingly  held,  that  a  conveyance  of  real  estate,  acknowledged  before  a  Com- 
missioner in  and  for  the  county  of  Orange,  in  1836,  could  not  be  read  in  evidence 
at  the  Circuit  in  Rockland  County,  without  the  certificate  of  the  Clerk  of  Orange 
county. 

ERROR  to  the  Supreme  Court,  where  the  action  was  tres- 
pass for  cutting  and  carrying  away  timber  from  certain  lands 
in  Haverstraw,  Rockland  County,  tried  at  the  Rockland  Cir- 
cuit, before  RUGGLES,  Circuit  Judge.  The  question  was  main- 
ly one  of  boundary  between  the  premises  owned  by  the 
plaintiff  and  Weiant  respectively ;  and  on  the  trial  it  became 
material  to  the  plaintiff's  case  to  introduce  in  evidence  a  deed 
of  the  premises  in  question,  or  of  adjoining  lands,  executed 
in  1836,  and  acknowledged  before  a  Commissioner  of  Deeds 
for  the  County  of  Orange.  The  Judge  rejected  the  evidence 
because  there  was  no  certificate  of  the  Clerk  of  Orange 
County  pursuant  to  1  R.  S.  759,  §  18.  The  plaintiff  insisted 
that  the  deed  might  be  read  under  the  act  of  1833,  (Stat. 
1833,  p.  396,  §  9)  and  excepted  to  the  opinion  of  the  Judge. 
A  verdict  having  passed  for  the  defendant,  the  plaintiff,  on  a 
bill  of  exceptions  presenting  this  and  other  questions,  moved 
for  a  new  trial  in  the  first  instance  before  the  Circuit  Judge, 
who,  on  denying  the  motion,  delivered  a  written  opinion, 
which  so  far  as  it  relates  to  this  point  is  subjoined. 

RUGGLES,  CIK.  J.  "  The  counsel  for  the  plaintiff  contends, 
that  the  act  of  1833,  ch.  271,  sec.  19,  (2  R.  'S.  325,  sec.  74,) 
has  altered  the  law  in  relation  to  the  reading  of  deeds  in  evi- 
dence, and  made  the  Clerk's  certificate  unnecessary.  But  I 


78  CASES  IN  THE  COURT  OF  APPEALS. 

Wood  v.  Weiant 

think  the  law  in  relation  to  receiving  deeds  in  evidence  is  not 
altered.  This  section  was  not  intended  to  apply  to  deeds  of 
real  estate ;  they  were  already  provided  for,  and  when  that 
section  provides  that  the  instruments  embraced  within  its 
scope  shall  be  received  in  evidence  in  the  same  manner  as  if 
they  were  deeds,  it  recognizes  the  existing  law  in  relation  to 
deeds  as  still  in  force,  and  puts  other  instruments  on  the  same 
footing  as  deeds,  not  only  with  respect  to  the  certificate  of 
acknowledgment  or  proof,  but  with  respect  to  the  authentica- 
tion of  the  certificate  by  the  County  Clerk." 

The  Supreme  Court,  on  appeal  from  the  Circuit  Judge,  also 
refused  a  new  trial,  and  rendered  judgment  for  the  defendant. 

H.  S.  Dodge,  for  plaintiff  in  error. 
A.  Taber,  for  defendant  in  error. 

After  deliberation,  all  the  Judges  were  of  opinion  that  the 
question  in  regard  to  the  admissibility  of  the  deed  in  evidence 
was  properly  decided  at  the  Circuit. 

JEWETT,  CH.  J.,  and  GARDINER,  WRIGHT,  and  GRAY,  Js., 
were  for  reversing  the  judgment  on  another  ground. 

BRONSON,  RUGQLES,  JONES,  and  JOHNSON,  Js.,  were  for  af- 
firmance. 

Judgment  affirmed. 


NEW-YORK,  NOVEMBER,  1847.  79 

Doughty  v.  Hope. 

79 

s      HA     209 

2  •  69 

11  2571 

DOUGHTY  vs.  HOPE. 


47  7459 

Where  property  is  taken  under  a  statute  authority,  without  the  consent  of  the  47  »A 

owner,  the  power  must  be  strictly  followed  ;  and  if  any  material  link  is  wanting,  47  1451 

the  whole  proceeding  is  void.  Gl  *  65 

Where  three  persons  were  authorized  to  estimate  the  expense  of  a  public  im-  ^ 

provement  in  the  city  of  New  York,  and  to  assess  the  same  upon  the  owners  -,,*  ,«,.„ 

and  occupants  benefitted,  and  one  of  the  three  persons  was  not  consulted  and  3  j£  «ggg 

did  not  act  in  making  such  estimate  and  assessment:  lield,  that  the  proceeding  3  Tr  138 
was  void,  and  that  no  title  could  be  deduced  through  a  sale  made  for  the 
non-payment  of  such  assessment. 

Where  an  assessment  is  signed  by  two  of  the  persons  so  authorized,  it  seems  the 
legal  presumption  is,  that  the  third  was  present  and  acted  in  the  business  ;  but 
it  may  nevertheless  be  shewn  that  he  was  not  consulted  and  did  not  act. 

One  of  the  assessors  who  signed  the  certificate,  is  a  competent  witness  to  prove 
that  the  third  assessor  was  not  eonsulted. 

The  ratification  by  the  Common  Council  of  the  cily  of  New  York,  of  a  void 
assessment,  does  not  aid  the  proceeding.  To  make  out  a  title  there  must  be  a 
valid  assessment  duly  ratified. 

A  request  for  instruction  to  a  jury  should  rest  upon  undisputed  facts  or  a  hypo 
thetical  case  ;  and  if  the  proposition  which  the  party  submits  be  not  right  in  all 
its  parts,  both  as  to  fact  and  law,  the  Judge  may  refuse  to  give  the  instruction 
asked  for,  and  need  not  qualify  such  refusal  by  pointing  out  the  good  and  the 
bad  parts  of  the  proposition. 

The  publication  of  the  redemption  notice  required  by  Slot.  1816,  p.  114,  §  2,  as 
amended  by  Slot.  1840,  p.  274,  §  10,  after  a  sale  for  a  tax  or  assessment,  must  be 
fully  completed  before  the  commencement  of  the  last  six  months  of  the  two 
years  succeeding  the  sale,  and  an  omission  in  this  respect  will  invalidate  the 
purchaser's  title. 

Where  the  redemption  notice  is  not  published  according  to  law,  a  regular  notice 
served  after  the  execution  of  the  lease  given  upon  the  sale,  pursuant  to  Stat. 
1841,  p.  211,  §  3,  and  the  certificate  by  the  Street  Commissioner,  required  by 
§  7  of  the  same  act,  do  not  confirm  the  title. 

The  statute  which  declares  that  the  lease  given  upon  a  sale  for  taxes  or  assess- 
ments in  the  city  of  New  York,  "  shall  be  conclusive  evidence  that  the  sale  was 
regular,"  &c.  (Stat.  1816,  p.  115,  §  2,)  refers  only  to  the  notice  of  sale  and  the 
proceedings  at  (lie  auction. 

On  error  from  the  Supreme  Court.  Doughty  brought  eject- 
ment against  Hope  to  recover  possession  of  a  house  and  lot, 
situated  in  the  12th  ward  of  the  city  of  New  York.  The  cause 
was  first  tried  before  Edmonds,  Circuit  Judge  in  May,  1  845, 
when  a  verdict  was  had  for  the  defendant.  The  Supreme 


80  CASES  IN  THE  COURT  OF  APPEALS. 

Doughty  v.  Hope. 

Court,  on  bill  of  exceptions,  set  aside  the  verdict  and  granted 
a  new  trial.  (See  3  Denio,  249.)  The  cause  was  tried  again 
before  the  same  Circuit  Judge,  at  the  New  York  Circuit,  in 
October,  1846,  and  on  this  trial  the  case  was  as  follows  : 

The  plaintiff  claimed  to  recover  under  a  lease  from  the  cor- 
poration of  the  city  of  New  York,  conveying  to  him  a  term  of 
800  years,  on  a  sale  for  the  non-payment  of  an  assessment 
for  setting  the  curb  and  gutter  stones  in  125th  street,  between 
the  3rd  and  4th  avenues.  The  defendant  claimed  under  the 
owner  in  fee,  against  whom  the  assessment  was  made.  The 
ordinance  for  setting  the  curb  and  gutter  stones  was  passed 
in  April  1836,  and  by  the  same  ordinance  Messrs.  Warner, 
Gaines,  and  Secor,  were  appointed  to  make  an  estimate  of  the 
expense  of  carrying  into  effect  the  ordinance,  and  a  just  and 
equitable  assessment  thereof  among  the  owners  or  occupants 
of  all  the  houses  and  lots  intended  to  be  benefitted  thereby. 
The  three  persons  thus  appointed  took  the  oath  required  by 
law.  The  estimate  and  assessment  were  made  and  returned 
in  September  1837,  but  the  return  was  signed  by  only  two  of 
the  assessors,  Warner  and  Gaines.  Warner  who  was  called 
by  the  plaintiff  as  a  witness  to  prove  the  assessment,  on  his 
cross  examination  gave  some  evidence  tending  to  show  that 
Secor,  the  other  assessor  did  not  act,  and  was  not  consulted 
in  regard  to  it.  The  assessment  was  confirmed  by  the  Com- 
mon Council  on  the  4th  of  April  1838,  and  such  further  pro- 
ceedings were  had,  that  the  premises  in  question  were  sold  for 
the  non-payment  of  the  assessment  on  the  20th  of  June,  1840, 
and  the  plaintiff  became  the  purchaser  for  the  term  of  800 
years.  In  pursuance  of  this  sale,  the  grant  or  lease  under 
which  the  plaintiff  claimed,  was  executed  on  the  20th  of  June, 
1842.  The  lease  was  introduced  in  evidence  by  the  plaintiff, 
which  recited  the  proceedings  prior  to  the  sale,  and  that  no 
redemption  had  been  made  within  two  years  from  the  time  of 
the  sale. 

The  plaintiff  also  proved  that  the  notice  to  redeem  the 
premises  required  by  law,  (Stat.  of  1816,  p.  114,  as  amended, 
by  the  act  of  1840,  p.  271,  §  10,)  was  published  in  the  Evening 


NEW-YORK,  NOVEMBER,  1847.  81 

Doughty  v.  Hope. 

Post  twice  a  week  for  six  weeks  successively,  commencing  on 
the  18th  of  December,  1841,  and  ending  January  21,  1842. 
He  further  proved  that  after  the  execution  of  the  lease  the 
further  notice  required  by  the  act  of  1841,  (Laws  of  1841, 
p.  211,  §  3,)  in  order  to  render  the  sale  absolute,  was  duly 
served ;  and  that  on  the  31st  of  July,  1843,  the  Street  Com- 
missioner gave  to  him  a  certificate  in  due  form  pursuant  to 
the  7th  section  of  the  statute  last  cited,  stating  that  the  pre- 
mises had  not  been  redeemed,  and  that  such  notice  had  been 
duly  served. 

The  evidence  being  closed,  the  plaintiff's  counsel  insisted, 
1st,  that  the  confirmation  of  the  assessment  by  the  Common 
Council  was  binding  and  conclusive,  whatever  irregularity 
might  have  occurred  in  making  such  assessment.  The  Circuit 
Judge  held  otherwise,  and  the  plaintiff  excepted.  2.  That  it 
appearing  in  the  evidence  (as  the  counsel  claimed)  that  all  the 
assessors  had  taken  the  oath,  and  adopted  the  principle  of 
making  the  assessment,  and  were  all  in  the  Street  Commis- 
sioner's office  when  it  was  made,  it  was  to  be  presumed  that 
Secor,  who  did  not  sign  the  report,  met  and  consulted  with 
those  who  did  sign  it,  and  that  such  presumption  could  not  be 
rebutted  by  any  impression  or  non-recollection  of  the  witness 
Warner ;  also  that  Secor  alone  could  prove  that  he  did  not 
act  with  the  others,  and  as  his  absence  was  unaccounted  for, 
no  secondary  evidence  could  go  to  the  jury.  The  Judge  ruled 
that  the  legal  presumption  was,  as  claimed,  that  all  the  asses- 
sors acted,  although  only  two  signed  the  report,  but  he  refused 
to  charge  any  thing  else  contained  in  this  proposition,  and  left 
it  to  the  jury  to  find,  upon  the  evidence  of  Warner,  whether 
all  the  assessors  were  consulted  and  acted ;  and  in  case  the 
jury  should  find  that  one  of  them  had  nothing  to  do  with 
making  the  assessment,  then  he  charged  that  such  assessment 
was  invalid.  The  plaintiff  excepted.  3.  That  the  redemp- 
tion notice  was  sufficiently  published  provided  such  publication 
ended  at  any  time  before  the  expiration  of  two  years  from  the 
time  of  sale,  or  if  not  so,  that  the  statutes  on  this  subject 

were  directory  merely.     The  Judge  declined  so  to  hold,  and 

11 


82        CASES  IN  THE  COURT  OF  APPEALS. 


Doughty  v.  Hope. 


charged  that  such  publication  must  end  and  be  complete  be- 
fore tho  commencement  of  the  last  six  months  of  the  two 
years  succeeding  the  sale,  and  that  if  the  notice  was  not  so 
published,  it  was  a  fatal  defect  in  the  plaintiff's  title.  The 
plaintiff  excepted.  4.  That  the  Street  Commissioner's  certifi- 
cate, given  pursuant  to  tho  act  of  1841,  was  conclusive,  and 
therefore  that  the  defendant  could  not  avail  himself  of  any 
defect  in  the  publication  of  the  redemption  notice.  The  Judge 
refused  so  to  charge,  and  the  plaintiff  excepted.  5.  That  the 
lease  was,  by  the  act  of  1816,  conclusive  evidence  of  the 
regularity  of  the  sale,  and  therefore  the  defendant  could  not 
avail  himself  of  any  defect  in  the  publication  of  the  redemp- 
tion notice.  The  Judge  refused  so  to  charge,  and  the  plain- 
tiff excepted.  The  jury  found  a  verdict  for  the  defendant. 
The  plaintiff  moved  the  Supreme  Court  for  a  new  trial  upon 
a  bill  of  exceptions,  presenting  the  above  questions.  The 
motion  was  denied,  and  judgment  rendered  for  the  defendant. 

A.  Thompson,  for  plaintiff  in  error. 
JR.  Mbtt  for  defendant  in  error. 

After  deliberation,  the  Court  (GARDINER,  J.  dissenting)  af- 
firmed the  judgment  of  the  Supreme  Court,  for  the  same  rea- 
sons, substantially,  which  were  assigned  by  that  Court  in  ren- 
dering its  judgment.  (See  3  Denio  598.) 


NEW-YORK,  NOVEMBER,  1847.  88 

Henry  v.  Salina  Bank. 


HENRY  impleaded  with  PIERCE  vs.  THE  BANK  OF  SALINA.  83 

s      HA     173 

A.  plaintiff  on  the  record,  or  plaintiff  in  interest,  when  called  upon  to  testify  under  1  Z285 

the  usury  act  of  1837,  cannot  be  compelled  to  disclose  facts  tending  to  shew  '117 

that  the  promissory  note,  to  recover  which  the  suit  is  brought,  was  discounted  j,    ,        '186 

by  him  in  violation  of  the  statute  (1  R.  S,  595,  §  28)  concerning  the  discounting 
of  notes,  &c.,  by  officers  and  agents  of  banking  corporations. 

A  note  discounted  by  the  Teller  of  a  Bank,  for  his  own  benefit,  in  violation  of  the 
statute  above  cited,  is  void;  and  where  the  note  alleged  to  have  been  so 
discounted  was  in  suit  for  his  benefit,  and  in  opening  the  defence  to  the  jury,  this 
was  stated  as  one  ground  of  defence,  and  usury  as  another  ground,  such 
Teller,  although  ostensibly  called  as  a  witness  to  prove  the  usury,  cannot  be 
required  to  disclose  the  transaction  for  the  reason  that  his  testimony  might 
subject  him  to  a  loss  of  the  note  upon  aground  distinct  from  the  defence  of  usury. 

A  witness,  or  party  called  as  a  witness,  may  not  only  object  to  testifying  to  the 
main  fact  which  would  subject  him  to  a  penalty  or  forfeiture,  but  may  also  refuse 
to  disclose  any  one  of  a  series  of  facts  which  together  would  expose  him  to 
such  penalty  or  forfeiture. 

Where  a  witness  objected  to  testifying  on  the  ground  that  his  testimony  might 
subject  him  to  an  indictment,  or  prosecution  for  a  penalty,  it  is  not,  in  a  Court 
of  Review,  an  answer  to  the  claim  of  privilege,  that  the  statute  of  limitations 
has  run  against  the  offence,  unless  it  appear  that  such  answer  was  suggested 
on  the  trial.  Per  BRONSON,  J. 

On  error  from  the  Supreme  Court.  The  Bank  of  Salina 
Bued  Henry  and  Pierce  in  the  Court  below  upon  a  promissory 
note  signed  by  Pierce  as  principal,  and  Henry  as  surety,  paya- 
ble to  the  bank  and  not  negotiable.  Henry  pleaded  the  gen- 
eral issue  and  gave  notice  of  the  defence  of  usury,  verifying 
the  notice  according  to  the  usury  act  of  1837.  On  the  trial 
at  the  Circuit  in  April,  1844,  after  the  plaintiffs  had  rested, 
the  defendant's  counsel  opened  the  defence  to  the  jury,  and 
stated,  among  other  things,  that  the  note  was  made  to  be  dis- 
counted at  the  plaintiffs'  bank,  and  was  in  the  first  instance 
presented  by  Pierce  to  the  bank  for  discount ;  that  the  bank 
refused  to  discount  it ;  that  this  fact  was  known  to  ElisJia 
Chapman,  who  was  the  teller  of  the  bank ;  that  the  note  was 
afterwards  presented  to  Chapman,  who,  with  full  knowledge 
that  the  note  had  been  presented  to  the  bank  for  discount  and 
refused,  discounted  the  same,  and  in  so  doing  deducted 


84       CASES  IN  THE  COURT  OF  APPEALS. 


Henry  v.  Salina  Bank. 


from  the  face  of  the  note,  under  a  corrupt  and  usurious  agree- 
ment between  him  and  Pierce.  The  note  was  payable  in 
sixty-three  days  from  its  date. 

To  prove  this  defence  the  defendant  called  the  said  Chapman 
and  had  him  sworn  as  a  witness,  and  in  the  first  instance  pro- 
posed to  prove  by  him,  under  the  plea  of  the  general  issue, 
that  the  note  was  usurious  and  void.  Chapman  objected  to 
answering  on  the  ground  that  his  testimony  would  form  a  link 
in  the  chain  of  evidence  to  convict  him  of  a  misdemeanor,  or 
would  expose  him  to  a  penalty  or  forfeiture.  In  support  of 
the  objection  it  was  insisted  that  when  called  as  a  mere  wit- 
ness, and  not  as  a  party  under  the  usury  act  of  1837,  he 
could  not  be  compelled  to  testify  under  the  provisions  of  that 
act.  It  was  also  insisted  that  he  was  protected  from  answer- 
ing under  1  R.  S.  595,  §  28,  which  declares  that  "  no  presi- 
dent, director,  cashier,  clerk  or  agent,  of  any  corporation 
having  banking  powers,  and  no  person  in  any  way  interested 
or  concerned  in  the  management  of  any  such  corporation, 
shall  discount  or  directly  or  indirectly  make  any  loan  upon 
any  note  which  he  shall  know  to  have  been  offered  for  dis- 
count to  the  directors,  or  to  any  officer  of  such  corporation, 
and  to  have  been  refused,  and  that  every  person  violating  the 
provisions  of  that  section  shall  for  each  offence  forfeit  twice 
the  amount  of  the  loan  which  he  shall  have  made."  The 
Circuit  Judge  sustained  the  objection  of  the  witness,  and  the 
defendant  excepted. 

The  defendant  then  offered  to  prove  the  usury  by  the  same 
witness  under  the  notice  of  the  defence  of  usury  served  ivith 
the  plea,  on  the  ground  that  he  was  the  plaintiff  in  interest. 
The  witness  again  objected  on  the  grounds,  first,  that  the  act 
of  1837  did  not  require  him  to  testify,  unless  it  should  first 
appear  that  he  was  the  plaintiff  in  interest  and  the  owner  of 
the  note,  and  second,  that  he  could  not  answer  and  shew  him- 
self to  be  the  owner  of  the  note,  without  subjecting  himself  to 
a  penalty  or  forfeiture  under  the  statute  which  is  above  set 
forth,  or  without  establishing  a  link  in  the  chain  of  evidence 
which  might  subject  him  to  a  penalty  or  forfeiture,  under  that 
statute.  Objection  sustained  and  defendant  excepted. 


NEW-YORK,  NOVEMBER,   1847.  85 

Henry  v.  Salina  Bank. 

The  defendant  then  offered  to  prove  by  the  witness  that  he 
was  the  party  in  interest.  This  was  objected  to  by  the  wit- 
ness, and  the  objection  sustained  on  the  same  grounds,  and 
an  exception  taken.  A  verdict  was  had  for  the  plaintiffs,  and 
the  defendant  moved  the  Supreme  Court  for  a  new  trial  on  a 
bill  of  exceptions.  That  motion  was  denied  and  judgment 
rendered  for  the  plaintiffs.  (See  2  Denio  155.) 

Wm.  J.  Hough,  for  plaintiff"  in  error.  1.  Chapman  was 
bound  to  testify  as  a  witness  under  the  general  issue.  The 
case,  as  disclosed  in  opening  the  defence  to  the  jury,  did  not 
shew  that  he  had  actually  received  usury  so  as  to  expose  him 
to  an  indictment  for  a  misdemeanor,  or  if  it  did,  the  statute 
of  limitations  had  run  so  as  to  be  a  bar  to  any  such  indict- 
ment. 2.  The  defendant  should  have  been  permitted  to  prove 
by  the  witness,  under  the  notice  annexed  to  the  plea,  that  he 
was  the  plaintiff  in  interest,  and  also  the  usurious  agreement. 
The  usury  act  of  1837  would  protect  him  against  the  use  of 
his  testimony  to  subject  him  to  any  criminal  prosecution  or 
penalty  or  forfeiture ;  or  at  all  events  the  statutes  of  limita- 
tion would  be  a  perfect  protection.  (Henry  vs.  Bank  of  Sa- 
lina, 5  Hill  523,  525-6-7;  Stephens  vs.  White,  id.  548; 
Close  vs.  Olney,  1  Denio  319;  1  Phil.  ev.  223,  note  (a);  1 
Cow  and  Hill's  notes  739  ;  The  People  vs.  Mather,  5  Wend. 
229.  250.  257.) 

N.  Hill,  Jun.,  and  Creo.  F.  ComstocTc,  for  defendants  in 
error,  in  addition  to  the  grounds  upon  which  the  judgment 
of  the  Supreme  Court  was  placed,  insisted,  that  if  the  note 
was  discounted  in  violation  of  the  statute  above  referred  to 
concerning  banking  corporations,  it  was  void  and  could  not  be 
recovered  in  this  action,  (Chitty  on  Cont.  6  Am.  ed.  656,  657  ; 
Story  on  Cont.  §  218,  £c. ;  Collins  vs.  Blantern,  1  Smith's 
leading  cases  169 ;  Nellis  vs.  Clark,  20  Wend.  32,)  and  re- 
garding Chapman  as  plaintiff  in  interest,  (as  he  was  claimed 
to  be  on  the  trial)  his  testimony,  if  he  should  disclose  the 
transaction  or  any  part  of  it,  might  be  used  on  the  trial  to 


86        CASES  IN  THE  COURT  OF  APPEALS. 


Henry  v.  Salina  Bank. 


defeat  a  recovery  upon  this  ground,  even  if  the  defence  of 
usury  should  fail,  and  thus  subject  him  to  a  loss  of  the  money 
he  had  loaned.  This  would  be  such  a  forfeiture  as  would 
bring  him  within  the  rule  of  protection ;  and  against  this  for- 
feiture no  statute  of  limitations  had  commenced  to  run. 
(Livingston  vs.  Harris,  11  Wend.  330,  331;  8.  C.  3  Paige 
533,  538 ;  Story's  eq.  pi  §§  579,  580,  2,  3,  4 ;  1  Oreenl. 
ev.  §  452,  and  notes,  2  R.  S.  405,  §  71.) 

BRONSON,  J.  There  is  another  ground,  besides  those  men- 
tioned by  the  Supreme  Court,  on  which  Chapman  was  privi- 
leged from  answering  the  questions  put  to  him.  It  was  one 
branch  of  the  defence  that  the  witness,  being  the  teller  of  the 
bank,  discounted  the  note  after  it  had,  with  his  knowledge, 
been  offered  for  discount  to  the  directors,  and  been  refused  by 
them.  If  this  fact  could  be  established,  Chapman  would  not 
only  forfeit  twice  the  amount  of  the  loan  which  he  made,  (1 
E.  S.  596,  §  28,)  but  he  would  forfeit  the  debt  itself.  As  the 
discounting  of  the  note  was  expressly  forbidden  by  the  statute, 
there  can  be  no  doubt  that  the  security  would  be  void.  A 
witness  must  speak,  though  the  answer  may  establish  that  he 
owes  a  debt,  or  is  otherwise  subject  to  a  civil  suit ;  but  he  is 
not  bound  to  speak  where  the  answer  may  subject  him  to  a 
forfeiture,  or  any  thing  in  the  nature  of  a  forfeiture  of  his 
estate  or  interest.  (2  R.  S.  405,  §  71 ;  1  Phil.  ev.  278 ; 
Mitf.  Plead.  197,  ed.  of  '33 ;  Livingston  vs.  TompJcins,  4 
John.  Chan.  432 ;  Livingston  vs.  Harris,  3  Paige  533,  and 
11  Wendell  329,  S.  C.  in  error.}  As  the  answer  of  the  wit- 
ness might  tend  to  establish  facts  which  would  work  a  for- 
feiture of  the  debt,  he  was  not  obliged  to  testify.  This  ground 
is  of  itself  sufficient  to  establish  the  privilege  of  the  witness ; 
and  as  to  this,  the  statute  of  limitations  has  no  application. 

The  grounds  on  which  the  privilege  of  the  witness  was  put 
by  the  Supreme  Court  are  equally  conclusive,  unless  a  prose- 
cution under  the  usury  law,  and  a  suit  under  the  bank  law  for 
twice  the  amount  of  the  loan,  had  been  barred  by  the  statute 
of  limitations  ;  and  there  is  nothing  in  the  case  to  show  that 


NEW-YORK,  NOVEMBER,  1847.  87 

Henry  v.  Salina  Bank. 

a  prosecution,  or  a  suit,  or  both  of  them,  had  not  been  com- 
menced in  due  time.  In  all  the  cases  where  it  has  been  held 
that  the  running  of  the  statute  took  away  the  privilege  of  the 
witness,  it  expressly  appeared,  not  only  that  the  time  for 
sueing  or  prosecuting  had  elapsed,  but  that  no  suit  or  prose- 
cution had  been  commenced,  or  if  one  had  been  commenced, 
that  it  had  been  discontinued.  Here  the  statute  was  not  even 
mentioned  on  the  trial.  It  may  not  have  been  necessary  for 
the  defendant  to  prove  the  negative  fact  that  no  suit  or  prose- 
cution had  been  commenced.  But  if  he  intended  to  rely  on 
the  statute,  he  was  at  least  bound  to  say  so ;  and  then  the  wit- 
ness might  have  answered,  that  proceedings  against  him  had 
already  been  commenced. 

The  witness  claimed  his  privilege,  and  there  was  a  prima 
facie  case  for  allowing  it.  If  there  was  any  answer  to  that 
case,  the  defendant  should  have  mentioned  it,  for  the  double 
purpose  of  allowing  the  truth  of  the  supposed  answer  to  be 
examined  at  the  proper  time,  and  of  dealing  fairly  with  his 
adversary  and  the  Circuit  Judge.  A  party  is  not  at  liberty 
to  start  a  question,  on  a  motion  for  a  new  trial,  or  in  a  Court 
of  Review,  which,  had  it  been  mentioned  on  the  trial,  might 
have  received  a  satisfactory  answer.  This  is  a  principle  of 
every-day  application,  and  there  is  nothing  in  this  case  which 
should  induce  a  departure  from  it. 

WEIGHT,  J.  A  president,  director,  cashier,  clerk,  agent,  or 
any  person  in  any  way  interested  or  concerned  in  the  manage- 
ment of  the  concerns  of  any  banking  corporation,  is  prohi- 
bited by  statute  from  discounting,  or  directly  or  indirectly 
making  any  loan  upon  any  note,  bill,  or  other  evidence  of  debt, 
which  shall  have  been  offered  to  the  directors  of  such  bank- 
ing corporation  for  discount ;  and  every  note,  bill,  or  other 
evidence  of  debt,  so  discounted,  or  upon  which  any  loan  shall 
have  been  made  by  any  of  the  persons  aforesaid,  knowing  that 
such  note  has  been  so  offered  and  refused,  shall  be  utterly 
void.  (1  E.  S.  604,  §  10.)  The  statute  declaring  the  act 
of  discount  or  loan  unlawful,  the  note  or  bill  would  also  be 


88  CASES  IN  THE  COURT  OF  APPEALS. 

Ileury  v.  Salina  Bank. 

void  upon  general  principles.     It  is  a  settled  doctrine  that  a 
contract  prohibited  by  statute  is  void. 

The  defendants'  counsel,  among  other  things,  stated  to  the 
jury,  in  opening  the  defence,  that  the  note  in  question  had 
been  presented  in  the  first  instance  to  the  Bank  of  Salina  for 
discount ;  that  the  bank  refused  to  discount  it ;  that  this  was 
known  to  Elisha  Chapman,  who  was  at  that  time  the  teller  of 
the  bank ;  that  the  note  was  subsequently  presented  to  the 
said  Elisha  Chapman,  who,  with  full  knowledge  that  the  same 
had  been  presented  at  the  bank  and  refused,  discounted  the 
note,  and  in  so  doing,  deducted  §10  from  the  face  thereof  un- 
der a  corrupt  and  usurious  agreement  between  him  and  the 
defendant,  Pierce.  Chapman  was  then  called  as  a  witness, 
and  both  under  the  plea  of  the  general  issue,  as  a  mere  wit- 
ness, and  under  the  notice  annexed  to  and  served  with  the 
plea,  as  plaintiff  in  interest,  refused  to  answer  any  of  the 
several  questions  put  to  him,  urging,  amongst  other  grounds, 
that  such  answers  might  form  a  link  in  the  chain  of  testimo- 
ny tending  to  expose  him  to  a  penalty  or  forfeiture. 

Without  discussing  the  questions  whether  Chapman,  when 
called  as  a  mere  witness,  and  not  as  plaintiff  under  the  usury 
law  of  1837,  was  protected  by  that  statute,  or  whether  when 
called  under  the  notice  annexed  to  the  plea  of  the  general 
issue,  as  plaintiff  in  interest,  before  he  can  be  compelled  to 
answer  and  criminate  himself,  it  must  first  appear  that  he  is 
the  plaintiff  in  interest ;  or  whether  for  the  reason  that  the 
statute  of  limitations  had  run  both  against  the  criminal  of- 
fence of  usury,  and  the  forfeiture  of  twice  the  amount  of  the 
loan,  under  1  R.  S.  595,  §  28,  he  was  protected  against  the 
consequences  of  his  testimony,  I  am  of  the  opinion  that  the 
witness  was  privileged  from  testifying.  Any  one  of  the  ques- 
tions propounded  might  have  formed  one  link  in  a  chain  of 
testimony  tending  to  bring  him  within  the  statutory  prohibi- 
tion as  to  the  discounting  of  notes  by  bank  officers,  and  show- 
ing him  guilty  of  an  unlawful  act,  one  of  the  consequences  of 
which  was  an  utter  forfeiture  and  loss  of  the  note.  And  this 
was  a  consequence  from  which  the  statute  of  limitations  could 


NEW-YORK,  NOVEMBER,  1847.  89 

Henry  v.  Salina  Bank. 

not  save  him.  The  rule  is  well  settled  that  a  witness  is  not 
required  to  give  any  answer  which  will  have  a  tendency  to 
accuse  himself  of  any  crime  or  misdemeanor,  or  to  expose  him 
to  any  penalty  or  forfeiture ;  or  when,  by  answering,  a  link 
may  be  added  to  a  chain  of  testimony  tending  to  such  a  re- 
sult. The  defendants  proposed  to  shew  a  state  of  facts,  in 
which  Chapman  was  the  guilty  actor,  rendering  the  note  ut- 
terly void.  They  were  therefore  called  upon  to  shew  it  with- 
out his  aid.  The  act  of  1837,  authorizes  the  calling  and  ex- 
amination of  the  plaintiff  for  the  purpose  of  proving  the  usury, 
and  excuses  him  from  criminal  prosecution ;  but  I  cannot 
agree  to  the  doctrine  advanced  by  the  counsel  for  the  defend- 
ants, that  when  called  under  that  act,  whether  the  interroga- 
tions propounded  tend  to  subject  him  to  a  penalty  or  forfeiture, 
distinct  from  the  question  of  usury  or  not,  he  is  bound  to 
answer. 
The  judgment  of  the  Supreme  Court  should  be  affirmed. 

GRAY,  J.  delivered  a  written  opinion  in  favor  of  reversing 
the  judgment. 

All  the  other  Judges  were  for  affirming  the  judgment  upon 
the  ground  taken  in  the  opinion  of  WEIGHT,  J.,  and  first  con- 
sidered in  the  opinion  of  BRONSON,  J.,  but  without  consider- 
ing or  passing  upon  the  other  questions  presented. 

12  Judgment  affirmed. 


90        CASES  IN  THE  COURT  OF  APPEALS. 


Jencks  v.  Smith. 


U9.°   .  JENCKS  vs.  SMITH. 

8       HA     150 

*206      Where  A  occupied  land  under  H,  and  by  the  terms  of  their  agreement  the  gnus 
belonged  to  A ;  held,  that  A  might  transfer  such  grass,  while  yet  growing,  by  a 

118  =178          Persol»al  mortgage. 

Where  upon  a  trial  there  is  opportunity  for  objection,  and  the  party  whose  duty  it 
is  to  object,  remains  silent,  all  reasonable  intendments  will  be  made,  in  a  Court 
of  Review,  to  uphold  the  judgment. 

The  defendant,  in  a  Justices'  Court,  claimed  the  property  by  virtue  of  a  personal 
mortgage,  which  was  read  in  evidence  without  objection.  It  also  appeared 
that  the  mortgage  had  been  filed ;  but  the  return  of  the  Justice  did  not  shew 
that  there  was  any  evidence  that  such  filing  was  in  the  town  where  the 
mortgagor  resided,  or  where  the  property  was  situated,  as  required  by  the 
statute,  (Laws  of  1S33,  cJiap.  279  ;)  nor  did  it  appear,  from  the  return,  that  the 
plaintiff,  who  claimed  the  property  as  purchaser  under  an  execution  against 
the  mortgagor,  made  any  objection  on  the  ground  of  such  defect  in  the  evi- 
dence ;  held,  that  such  an  objection  could  not  be  taken  in  the  Court  of  Common 
Pleas  on  certiorari. 

On  error  from  the  Supreme  Court.  Smith  sued  Jencks  be- 
fore a  Justice  of  the  Peace  of  the  County  of  Madison,  and 
declared  in  trespass  for  taking  a  quantity  of  hay.  The  de- 
fendant pleaded  the  general  issue,  and  gave  notice  that  he 
•would  prove  the  hay  belonged  to  him  by  virtue  of  a  chattel 
mortgage,  executed  upon  the  same  by  one  Philip  Arnold.  On 
the  trial  the  plaintiff  claimed  the  hay  by  virtue  of  a  sale  to 
him  under  an  execution,  issued  from  a  Justices'  Court,  against 
the  said  Philip  Arnold.  Arnold  cut  the  hay  upon  land  which 
he  occupied  under  one  Hunt.  The  hay  was  cut  and  stacked 
on  Saturday,  and  on  the  Monday  following  the  above  execu- 
tion was  levied  upon  it,  and  the  plaintiff  bought  it  at  the 
constable's  sale. 

Shortly  before  the  hay  was  cut,  Arnold  had  executed  to  the 
defendant  a  personal  mortgage  upon  it,  which,  as  Arnold  tes- 
tified, was  given  for  a  book  account  which  he  owed  the  de- 
fendant. He  also  testified  that  it  was  a  bona  fide  transaction. 
The  mortgage  was  read  in  evidence,  and  the  return  of  the 
Justice  does  not  shew  that  any  objection  was  made  to  this 
evidence.  A  witness  also  testified  that  he  saw  the  mortgage 


NEW-YORK,  NOVEMBER,  1847.  91 

Jencks  v.  Smith. 

filed,  but  the  return  does  not  shew  that  the  mortgagor  resided, 
nor  that  the  property  was  situated  in  the  town  where  the 
mortgage  was  filed,  nor  does  it  shew  that  any  objection  waa 
made  on  that  ground.  It  appeared  that  when  the  hay  was 
levied  upon,  it  had  not  been  actually  delivered  to  the  defend- 
ant. After  the  levy,  and  before  the  sale,  Arnold  stated,  in 
presence  of  the  agent  by  whom  the  plaintiff  bid  off  the  hay, 
that  he  had  given  a  mortgage  upon  it  to  the  defendant.  The 
defendant  removed  the  hay  by  virtue  of  his  mortgage,  and  for 
that  the  suit  was  brought.  The  return,  after  setting  out  the 
above  and  some  other  facts,  states,  "  The  testimony  was  here 
closed."  The  jury  gave  a  verdict  for  the  defendant,  on  which 
the  Justice  entered  judgment  in  his  favor.  This  judgment 
was  affirmed  by  the  Court  of  Common  Pleas  upon  certiorari, 
but  was  reversed  in  the  Supreme  Court,  on  writ  of  error. 
(see  1  Denio  580.) 

H.  Cr.  Wheaton,  for  plaintiff  in  error. 
Win.  J.  Sough,  for  defendant  in  error. 

WRIGHT,  J.  Two  points  were  made  on  the  argument  of 
this  cause  :  1.  That  the  mortgage  gave  the  defendant  (in  the 
Justices'  Court)  no  subsisting  lien  upon  the  grass,  as  it  is  not 
the  subject  of  conveyance  or  pledge,  as  security,  by  chattel 
mortgage.  2d.  That  there  was  no  proof  on  the  trial  before 
the  Justice  of  the  residence  of  the  mortgagor,  at  the  time  of 
the  execution  of  the  mortgage ;  or  that,  when  executed,  the 
property  was  in  the  town  in  which  the  mortgage  was  filed. 

With  regard  to  the  first  point,  I  concur  with  the  reasoning 
of  the  Supreme  Court.  (1  Denio  580.)  It  was  assumed 
by  both  parties,  on  the  trial,  that  by  an  agreement  between 
Hunt  the  owner  of  the  land,  and  Arnold  the  mortgagor, 
the  grass,  at  the  time  the  mortgage  was  given,  was  the  pro- 
perty of  Arnold.  Both  claimed  through  him.  Hunt  made 
no  claim,  nor  was  he  a  party  to  the  controversy.  The  undis- 
puted ownership  of  the  grass  being  in  Arnold,  I  see  no  objec- 


92  CASES  IN  THE  COURT  OF  APPEALS. 


Jencks  r.  Smith 


tion  to  his  passing  his  title  by  a  sale,  or  mortgaging  his  inter- 
est in  it.  At  all  events,  the  transfer  to  the  mortgagee  became 
perfect  on  its  severance  from  the  freehold. 

The  act  of  1833,  chap.  279,  provides  that  every  mortgage, 
or  conveyance  intended  to  operate  as  a  mortgage  of  goods 
and  chattels,  thereafter  made,  which  shall  not  be  accompanied 
by  an  immediate  delivery,  and  be  followed  by  an  actual  and 
continued  change  of  possession  of  the  things  mortgaged,  shall 
be  absolutely  void,  as  against  the  creditors  of  the  mortgagor, 
and  as  against  subsequent  purchasers  and  mortgagees  in  good 
faith,  unless  the  mortgage,  or  a  true  copy  thereof,  shall  be 
filed  in  the  town  or  city  where  the  mortgagor,  if  a  resident 
of  this  State,  shall  reside  at  the  time  of  the  execution  there- 
of; and  if  not  a  resident,  then  in  the  city  or  town  where  the 
property  so  mortgaged  shall  be  at  the  time  of  the  execution 
of  such  instrument.  It  is  now  insisted,  that  there  was  no 
proof  on  the  trial  of  the  residence  of  the  mortgagor,  nor  did 
it  appear  that  the  mortgage  was  filed  in  the  town  where  the 
property  was  at  the  time  of  its  execution.  If  the  return  of 
the  Justice  showed  affirmatively  that  this  proof  was  wanting, 
and  that  objection  was  raised,  before  the  Justice,  on  account 
of  the  absence  of  it,  the  defect  would  be  fatal.  But  the  re- 
turn is  merely  silent  on  the  point,  and  no  objection  appears  to 
have  been  taken  before  the  Justice.  Where  opportunity  is 
given  for  objections,  and  none  are  made,  but  the  party,  whoso 
duty  it  is  to  object,  remains  silent,  all  reasonable  intendments 
will  be  made  by  a  Court  of  Error  to  uphold  the  judgment. 
This  doctrine,  founded  in  good  sense,  has  been  promulgated. 
in  a  series  of  decisions,  by  the  Courts  of  this  State.  In  the 
case  of  Baldwin  vs.  Calkins,  (10  Wend.  li.  367)  on  certiorari, 
the  Supreme  Court  held  that  an  omission  to  object  will  even 
authorize  the  inference  of  a  fact  necessary  to  coufer  jurisdic- 
tion. In  Mendcrback  vs.  Hopkins,  (8  John.  R.  436)  a  con- 
stable, having  an  execution,  paid  the  amount  to  the  plaintiff, 
without  any  demand  of,  or  request  by  the  defendant,  and 
afterwards  sued  the  defendant  for  the  money  so  paid.  There 
was  no  evidence  on  the  trial  that  the  constable  had  made  a 


NEW-YORK,  NOVEMBER,  1847.  93 

Jencks  v.  Smith. 

demand  on  the  defendant,  or  that  he  had  been  requested  by 
him  to  make  the  payment.  The  Court  said,  "  a  demand  and 
request  may  have  been  presumed.  It  was  to  be  inferred  as 
admitted,  when  nothing  was  said  to  the  contrary.  Indeed,  as 
no  objection  was  made  to  any  of  the  testimony,,  but  it  was 
submitted  to  the  jury,  every  inference  that  could  be  drawn 
from  the  evidence,  is  to  be  presumed  to  have  been  drawn,  and 
the  verdict,  by  reasonable  intendment,  is  good."  In  Fort  vs. 
Monroe,  (20  Wend.  R.  210)  case  was  brought  for  negligence 
of  a  servant  of  the  defendant  in  driving  a  gig,  by  which  a 
son  of  the  plaintiff  was  run  over  and  killed.  There  was  no 
evidence  to  shew  that  the  servant  was  acting  in  the  business 
of  the  master,  or  within  the  scope  of  his  authority,  nor  was 
that  point  made  upon  the  trial,  either  on  a  motion  for  a  non- 
suit, or  after  the  testimony  had  closed.  On  a  motion  for  a 
new  trial,  the  Supreme  Court  remarked :  "  The  case  seems  to 
have  been  tried  and  defended  upon  the  assumption  of  the  ex- 
istence of  the  relation  of  master  and  servant  between  the  de- 
fendant and  the  person  driving  the  carriage.  It  would,  there- 
fore, be  unreasonable  to  disturb  the  verdict  upon  the  ground 
now  urged,  as  the  counsel  did  not  choose  to  avail  himself  of 
it  when  it  could  have  been  removed,  by  his  adversary,  by  the 
production  of  proof."  In  Oakley  vs.  Van  Iforn,  (21  Wend. 
R.  305)  the  collector  of  a  school  district  was  sued,  in  a  Jus- 
tices' Court,  in  trespass,  for  levying  upon  and  selling  a  saddle 
for  a  school  tax.  In  the  return  of  the  Justice  it  did  not  ap- 
pear that  any  evidence  was  given  to  shew  that  before  the  levy 
the  collector  demanded  the  payment  of  the  tax,  nor  on  the 
other  hand  did  it  appear  that  the  absence  of  such  proof  was 
objected  to  or  in  any  way  noticed  on  the  trial.  The  collector 
had  judgment,  and  the  Supreme  Court,  in  affirming  it,  say : 
"  If  we  are  authorized  to  hold,  from  the  return,  that  no  de- 
mand was  made  of  the  tax  in  question,  previous  to  the  levy, 
and  that  the  point  was  duly  raised  in  the  Justices'  Court,  there 
was  error.  But  in  the  case  at  bar,  the  return  is  merely  silent 
as  to  the  proof  of  demand.  No  objection  appears  to  have 
been  made  on  that  account,  nor  does  it  appear,  affirmatively, 


94  CASES  IN  THE  COURT  OF  APPEALS. 

Jencks  v.  Smith. 

that  the  proof  was  wanting.  We  must  intend,  therefore,  that 
it  was  given.  Had  the  objection  now  raised  come  before  us 
on  a  bill  of  exceptions,  it  must  have  been  shewn  affirmatively, 
that  the  collector  failed  to  justify  by  proving  a  demand  be- 
fore he  levied ;  and  beside,  that  the  defect  was  mentioned  as 
an  objection,  for  it  is  one  that  may  be  supplied,  and  we  would 
intend  that  had  the  objection  been  raised  it  would  have  been 
obviated  by  proof  of  the  fact.  Here  the  parties  were  present 
with  every  opportunity  to  raise  the  point."  In  Holbrook  et. 
al.  vs.  Wight,  (24  Wend.  It.  169)  it  was  necessary  for  the 
plaintiffs  to  sustain  their  action,  to  prove  that  they  had  ac- 
cepted or  paid  certain  drafts.  There  was  no  direct  evidence 
in  the  case  as  to  the  acceptance  or  payment,  nor  was  there 
any  objection  on  that  ground  raised  on  the  trial.  On  a  mo- 
tion for  a  new  trial,  Cowen,  Justice,  who  delivered  the  opin- 
ion of  the  Court,  held  the  following  language :  "  It  is  said 
there  is  no  evidence  in  the  case,  that  the  plaintiffs  had  either 
accepted  or  paid  the  drafts.  There  is  not,  indeed,  any  direct 
evidence,  but  the  fact  of  acceptance  was  assumed  throughout 
the  trial.  The  Judge  referred  to  it  in  his  charge  to  the  jury. 
It  is  strange,  if  such  a  material  fact  were  out  of  the  case, 
that  it  was  not  mentioned  as  an  objection  and  made  a  point." 

In  the  present  case  the  fact  seems  to  have  been  assumed 
throughout  the  trial  that  Arnold  was  a  resident  of  the  town 
of  De  Ruyter  at  the  execution  of  the  mortgage ;  and  no  ob- 
jections appearing  upon  the  return,  I  think  we  should  intend 
that  it  was  proved  or  admitted.  Clearly  upon  principle,  aside 
from  direct  authority,  it  ought  not  to  be  tolerated,  that  par- 
ties should  go  to  trial  in  a  Justices'  Court,  raising  no  objec- 
tions in  its  progress,  or  at  its  close,  when  any  defect  in  the 
proof,  if  pointed  out,  might  be  obviated,  and  afterwards,  be- 
ing dissatisfied  with  the  verdict,  an  Appellate  Court  should  be 
urged  to  reverse  the  judgment  of  the  Justice  on  an  allega- 
tion of  such  defect. 

The  judgment  of  the  Supreme  Court  should  be  reversed, 
and  that  of  the  Common  Pleas  and  Justice  affirmed 


NEW-YORK,  NOVEMBER,  184?. 


Jencks  v.  Smith. 


BEONSON,  J.  On  a  more  careful  examination  than  I  gave 
to  the  case  when  it  was  before  the  Supreme  Court,  I  am  satis- 
fied that  the  judgment  of  that  Court  is  erroneous.  The 
mortgage  was  filed  in  the  town  of  De  Ruyter,  where  the 
Justice  and  the  Jurors  lived,  and  where  the  trial  was  had ; 
and  it  does  not  appear  that  any  objection  was  made  on  the 
trial  that  the  mortgage  had  not  been  filed  in  the  proper  town, 
or  that  there  was  any  defect  of  proof  on  that  point.  It  was 
evidently  assumed  throughout  the  trial  that  De  Ruyter  was 
the  town  where  the  Mortgagor  resided ;  and  the  case  was  liti- 
gated upon  other  grounds.  I  am  of  opinion,  therefore,  that 
the  judgment  of  the  Supreme  Court  should  be  reversed ;  and 
that  the  judgment  of  the  Common  Pleas  should  be  affirmed. 

GARDINER,  RUGGLES,  and  JONES,  Js.,  concurred. 

JEWETT,  CH.  J.  and  GRAY,  J.  delivered  opinions  for  affirm- 
ance, with  whom  JOHNSON,  J.  concurred. 

Judgment  of  the  Supreme  Court  reversed,  and  that  of  the 
Justice  and  Common  Pleas  affirmed. 


96 


CASES  IN  THE  COURT  OF  APPEALS. 


96 
HA 
4 

10 
12 
52 
14 
54 
(6 
37 
45 
45 
60 
61 
61 
62 
65 
73 
81 
186 
97 
97 
97 
97 
118 
L22 
127 
160 
3K 


French  r.  Carhart. 


40 
'273 
'211 
3703 
'705 
'100 
T109 
'127 
S115l 
8418 
=604 
'433 
=561 
"619 
•532 
'305 
=339 
'563 
=253 
=256 
S369 
=554 
S557 
=219 
'258 
=174 
=556 
=439 
3  AbD  266 

3  Tr      209 

4  Tr      108 


ABEL  FEENCH,  JR.,  vs.  ROBERT  D.  CARHART. 

Where  a  deed  givea  in  1829  contained  a  clause  by  which  it  was  made  subject  to  a 
reservation  contained  in  a  conveyance  of  the  same  premises  given  in  1793, 
between  other  parties,  and  the  question  was  upon  the  construction  ol  the  deed 
of  1829  ;  held,  that  it  was  to  be  construed  in  the  same  manner,  as  though  the 
language  of  the  reservation  as  contained  in  the  original  deed  were  incorpora. 
ted  into  and  formed  a  part  of  the  one  in  question. 

In  the  construction  of  deeds  and  other  instruments  the  intention  of  the  parties  is 
to  govern,  and  where  the  language  used  is  susceptible  of  more  than  one  inter- 
pretation, courts  will  look  at  the  surrounding  circumstances  existing  when  the 
contract  is  entered  into,  such  as  the  situation  of  the  parties,  and  of  the  subject 
matter  of  the  contract. 

A  conveyance  of  real  estate  contained  a  clause  referring  to  and  adopting  the 
reservations  and  conditions  in  a  former  conveyance  of  the  same  premises,  and 
the  reservation  in  such  former  conveyance  was  in  these  words :  "  Saving  and 
always  excepting  to  the  said  parties  of  the  first  part,  their  heirs  and  assigns 
out  of  this  present  grant  and  release,  all  mines  and  minerals,  that  are  now,  or 
may  be  found  within  the  premises  hereby  granted  and  released,  and  all  tfa 
sretis.  bills,  runs  and  streams  of  water,  and  so  much  ground  within  the  same 
premises,  as  they,  the  said  parties  of  the  first  part,  their  heirs  and  assigns  may 
think  requisite  and  appropriate  at  any  time  hereaAer,  for  the  erection  of  the 
works  and  buildings  whatsoever,  for  the  convenient  working  of  the  said  mines 
and  also  all  such  wood,  fire  wood  and  timber  as  they  may  think  proper  to  use 
in  building,  repairing,  accommodating,  and  working  the  said  mines,  with 
liberty  to  them,  their  heirs  and  assigns,  and  their  and  each  of  their  servants  to 
dig  through  and  use  the  ground,  for  either  of  the  said  purposes,  and  to  pass  and 
repass  through  the  premises,  with  their  and  each  of  their  horses  and  cattle,  car- 
riages and  servants,  and  to  lay  out  roads  therefor," — and  the  habendum  clause, 
contained  a  condition  that  the  grantee,  his  heirs,  &c.,  should  not  erect,  or 
permit  to  be  erected,  any  mill  or  mill  dam  upon  the  stream  of  water  on  the 
premises  granted  ;  held,  that  the  reservation  of  the  stream  was  for  all  purposes 
and  not  for  mining  purposes  merely. 

And  in  aid  of  this  contruction;  held  also,  that  it  was  proper  to  consider  the 
evidence,  which  shewed  that  when  the  deed  in  question  was  given,  the  grantor 
owned  the  premises  immediately  below,  on  which  were  situated  and  used  a 
a  mill  and  dam,  which  set  the  water  back  on  to  the  land  conveyed,  and  that 
the  grantee  knew  ol  the  existence  of  such  mill  and  dam,  and  of  the  manner  in 
which  the  stream  was  affected  by  their  use. 

Held  also,  that  the  reservation  was  not  merely  of  the  natural  bed  of  the  stream, 
but  of  a  right  to  use  the  stream  in  the  same  manner,  and  to  set  back  the  water 
to  the  same  extent,  as  when  the  grant  was  made. 

Whatever  is  necessary  to  the  fair  and  reasonable  use  of  the  thing  cxccpted,  is 
is  also  reserved  as  incident  to  the  exception. 

A  reservation   in  a  deed   of  a  right  or  privilege  should  be  construed  in  the  sjime 


NEW- YORK,  NOVEMBER,  1847.  97 

French  v.  Carhart. 

way  as  a  grant  by  the  owner  of  the  soil,  of  a  similar  right  or  privilege.    Per 
JEWETT,  CH.  J. 

If  the  language  of  a  deed  is  ambiguous,  the  Court,  in  order  to  arrive  at  the  inten- 
tion of  the  parties,  may  look  at  their  subsequent  acts,  and  the  manner  in  which 
the  thing  granted  has  been  used,  and  enjoyed  under  the  grant.  Per  JEWETT, CH.  J. 

Error  from  the  Supreme  Court.  Carhart  sued  French  for 
overflowing  his  land,  situated  upon  a  creek,  called  the  Nor- 
manskill  in  Guilderland,  Albany  County,  by  means  of  a  dam 
erected  upon  the  stream  below  the  premises  overflowed. 

On  the  trial  at  the  Albany  Circuit  before  Cushman,  Circuit 
Judge,  in  October,  1843,  the  evidence  tended  to  shew  that  in 
1793,  Abraham  TenBroeck  and  Wife  gave  a  perpetual  lease 
of  the  premises  claimed  by  the  plaintiff  below,  to  John  Bullock, 
which  contained  a  reservation  in  these  words :  "  Saving  and 
always  excepting  to  the  said  parties  of  the  first  part,  their 
heirs  and  assigns,  out  of  this  present  grant  and  release,  all 
mines  and  minerals,  that  are  now  or  may  be  found  within  the 
premises  hereby  granted  and  released,  and  all  the  creeks, 
kills,  runs,  and  streams  of  water,  and  so  much  ground  within 
the  same  premises,  as  they  the  said  parties  of  the  first  part, 
their  heirs  and  assigns  may  think  requisite  and  appropriate  at 
any  time  hereafter,  for  the  erection  of  the  works  and  build- 
ings whatsoever,  for  the  convenient  working  of  the  said  mines, 
and  also  all  such  wood,  fire-wood  and  timber,  as  they  may 
think  proper  to  use  in  building,  repairing,  accommodating, 
and  working  the  said  mines,  with  liberty  to  them,  their  heirs 
and  assigns,  and  their  and  each  of  their  servants  to  dig  through 
and  use  the  ground,  for  either  of  the  said  purposes,  and  to 
pass  and  re-pass  through  the  premises,  with  their  and  each  of 
their  horses  and  cattle,  carriages  and  servants,  and  to  lay  out 
roads  therefor."  In  the  habendum  clause  of  the  same  lease, 
was  a  condition  in  these  words  :  "  And  upon  this  condition, 
that  neither  the  said  John  Bullock,  nor  his  heirs,  nor  assigns 
do  at  any  time  hereafter  erect  or  permit,  or  cause  to  be  erec- 
ted, any  mill  or  milldam  upon  any  creek,  kill,  river,  or  stream 
of  water,  within  the  premises  hereby  granted,  nor  give,  nor 
cause  to  be  given,  any  manner  of  let  or  obstruction  whatso- 
ever to  the  said  parties  of  the  first  part,  their  heirs  or  assigns, 

13 


98  CASES  IN  THE  COURT  OF  APPEALS. 

French  v.  Carhart. 

to  their  and  each  of  their  prejudice  in  the  full  enjdyment  of 
the  rights,  titles,  and  privileges  saved  to  him  or  them  by 
the  saving  and  exception,  before  in  these  presents  above  men- 
tioned." Then  followed  a  clause  giving  a  right  to  re-enter 
on  failure  in  performance  of  the  conditions. 

In  1805,  Ten  Broeck  and  Wife  conveyed  to  James  McKoun 
and  Abel  French,  Sen.,  the  premises  claimed  t>y  the  defend- 
ant, and  on  which  the  dam  in  question  is  erected.  This  con- 
veyance contained  in  the  granting  part  the  following  clause : 
"  Together  with  the  privilege  of  erecting  a  dam  at  the  fall 
above  mentioned,"  (referring  to  the  location  where  the  dam  in 
question  is  erected)  not  "  exceeding  five  feet  in  height."  As 
early  as  1817,  Abel  French,  Sen.  erected  a  dam  at  the  place 
indicated  by  this  deed,  and  this  dam  (having  been  one  or 
more  times  washed  away  and  re-built)  was  continued  down  to 
the  time  of  the  trial,  and  during  that  period  the  water  raised 
by  such  dam  was  used  to  supply  a  flouring  mill  upon  the  same 
premises.  The  defendant  below  rebuilt  the  dam  in  question 
in  1839. 

On  the  17th  of  February,  1829,  Abel  French,  Sen.  had  be- 
come owner,  under  the  titles  from  Ten  Broeck,  of  the  premi- 
ses claimed  by  the  plaintiff  and  defendant  respectively,  and 
on  that  day  he  conveyed  the  plaintiff  s  premises,  (the  same 
described  in  the  declaration)  to  Jeremiah  Van  Auken,  "sub- 
ject, among  other  things,  to  such  covenants,  reservations,  and 
conditions,  as  are  mentioned  in  the  original  deed  or  lease 
formerly  given  by  Abraham  Ten  Broeck,  deceased,  to  John 
Bullock."  Van  Auken  went  into  possession  and  occupied 
until  April,  1837,  when  he  conveyed  the  same  premises  to  the 
plaintiff,  with  the  same  reservations,  and  the  like  reference  to 
the  lease  from  Ten  Broeck.  The  premises  are  bounded  in 
these  deeds,  "  on  the  South  by  the  Normanskill."  The  defen- 
dant also  derived  his  title  from  Abel  French,  Sen.,  to  the 
premises  on  which  the  dum  complained  of  was  built.  The 
evidence  also  tended  to  shew,  that  Van  Auken  during  the 
time  that  ho  owned  and  occupied  the  plaintiff's  premises,  made 
no  objection  to  the  continuance  of  the  dam,  and  that  the 


NEW-YORK,  NOVEMBER,  1847.  99 


French  t».  Carhart. 


plaintijQT  at  the  time  he  purchased,  was  acquainted  with  the 
premises,  and  knew  of  the  existence  of  the  dam,  and  the 
manner  in  which  it  affected  the  stream.  The  weight  of  tes- 
timony also  went  to  shew,  that  the  dam  as  rebuilt  by  the  de- 
fendant raised  the  water  no  higher  than  the  dam  which  pre- 
ceeded  it  had  done,  and  no  higher  than  it  was  raised  when 
Van  Auken  and  the  plaintiff  purchased  respectively.  The 
water  was  set  back  over  a  mile,  and  covered  some  three  or 
four  acres  of  the  land  claimed  by  the  plaintiff.  It  did  not 
appear  that  any  mines  or  minerals  had  ever  been  found  on  the 
premises. 

The  Circuit  Judge  charged  the  jury  that  the  only  question 
for  them  to  pass  upon  was  as  to  the  amount  of  the  plaintiff's 
damages,  that  the  plaintiff  had  shewn  a  perfect  title  to  all  the 
land  covered  by  his  deed  to  the  middle  of  the  Normanskill, 
subject  only  to  the  reservation  of  the  stream  for  mining  purpo- 
ses. The  defendant's  counsel  insisted  and  requested  the  Cir- 
cuit Judge  to  charge,  l.That  the  conveyance  of  French  to  Van 
Auken,  bounded  Van  Auken  on  the  edge  of  the  stream  as  it 
then  was,  and  gave  him  no  title  to  the  land  then  under  water. 
2.  That  the  reservation  of  all  creeks,  kills,  streams  and 
runs  of  water,  was  absolute  for  any  and  every  purpose.  3. 
That  the  location  of  French's  deed  was  a  question  of  fact  for 
the  jury.  4.  That  the  reservation  in  question  was  ambig- 
uous, and  its  construction  should  be  left  to  the  jury  upon 
the  instruments  themselves,  and  the  surrounding  circumstan- 
ces which  had  been  given  in  evidence.  The  Circuit  Judge 
refused  so  to  charge,  and  the  defendant  excepted  to  his  charge 
and  refusal  to  charge  as  requested.  The  jury  found  for  the 
plaintiff.  The  Supreme  Court  on  bill  of  exceptions  refused  to 
grant  a  new  trial  and  gave  judgment  for  the  plaintiff. 

J.  Van  Buren,  (Atty.  Gen'l.)  for  plaintiff  in  error. 

I.  The  Judge  erred  in  charging  the  jury  that  the  reservation 
of  "  all  creeks,  kills,  streams  and  runs  of  water"  in  French's 
deed  was  a  reservation  only  for  mining  purposes. 


100  CASES  IN  THE  COURT  OF  APPEALS. 


Trench  v.  Carhart. 


1.  The  "covenants,  reservations  and  conditions"  in  the 
lease  from  Ten  Broeck,  are  a  part  of  the  deed  from  Abel 
French,  Sen.,  to  Jeremiah  Van  Auken,    under  which 
plaintiff  claimed  title. 

2.  The  reservation  of  "  all  creeks,  kills,  streams  and  runs 
of  water"  is  absolute.  (Oakley  vs.  Stanley,  5  Wend,  523  ; 
Provost  v.  Colder,  2  Wend.  517.) 

3.  The  construction  thus  given  by  the  Court  to  the  deed 
from  Abel  French,  Sen.,  in  1829,  destroys  the  valuable 
prescriptive  right  the  defendant  has  acquired  by  twenty- 
five  years  adverse  possession. 

II.  The  conveyance  from  French  to  Van  Auken,  with  the 
reservation  contained  therein,  bounded    the    said  Van  Auken 
on  the  edge  of  the  stream  as  it  then  was,  and  gave  him  no 
title  to  the  land  then  under  water.     (Child*  v.  Starr,  4  Hill, 
369.) 

III.  The  Judge  erred  in  refusing  to  submit  to  the  jury  as  a 
question  of  fact,  the  true  location  of  French's  deed  to  Van 
Auken.     (Frier  v.    Van  Alen,  8.  J.  R.  495 ;  Livingston  v. 
Ten  Broeck,  16  J.  R.  94  ;  Rockwell  v.  Adams,  7  Cow.,  761 ; 
Dibble  v.  Rogers,  13  Wend.  536.) 

M.  T.  Reynolds,  for  defendant  in  error.  1.  The  convey- 
ance from  French  to  Van  Auken  being  absolute,  and  without 
reserving  any  right  to  flow  any  part  of  the  lands  conveyed, 
except  such  right  as  is  reserved  in  the  lease  from  Ten  Broeck, 
divested  the  grantor  of  a  right  to  flow  the  land  conveyed. 
2.  The  reservation  in  the  lease  referred  to  is  in  terms  confined 
to  the  use  of  the  stream  for  mining  purposes  only.  3.  The 
grant  containing  an  express  reservation,  thereby  more  strongly 
excludes  all  implied  reservations. 

JEWETT,  Gil.  J.  Taking  into  consideration  the  words  of 
the  exception  and  condition  annexed,  it  appears  plain  to  my 
mind  that  the  reservation  of  the  creeks,  kills,  runs  and  streams 
of  water,  was  intended  by  the  parties  to  the  conveyance  to  be 
absolute  and  unqualified.  There  is  an  obvious  distinction  be- 
tween the  reservation,  as  it  relates  to  mines  and  minerals,  and 


NEW-YORK,  NOVEMBER,  1847.  1Q1 

French  v.  Carhart 

the  creeks,  kills,  runs  and  streams  of  -water,  and  as  it  relates 
to  the  ground  and  wood,  fire-wood  and  timber.  In  respect  to 
the  two  first  objects  of  the  reservation,  it  applies,  by  its  terms, 
to  all  of  the  mines  and  minerals,  and  to  all  of  the  creeks, 
kills,  runs  and  streams  of  water.  In  regard  to  the  latter  two, 
the  language  is  changed  and  qualified  to  so  much  ground,  and 
all  such  wood,  fire-wood  and  timber,  as  should  be  necessary 
for  mining  purposes,  and  excluding  such  part  of  the  ground, 
and  so  much  of  the  wood,  &c.,  as  should  not  be  necessary  for 
those  purposes. 

But  conceding  that  the  language  is  ambiguous,  so  as  to  cast 
a  doubt  upon  the  construction,  there  are  extraneous  facts  in 
the  case  which  deserve  an  attentive  consideration.  The  lan- 
guage of  the  reservation  we  are  considering,  is  found  in  the 
original  perpetual  lease  from  Ten  Broeck  to  Bullock,  given  in 
1793,  but  it  is  referred  to  and  adopted  in  the  deed  from 
French  to  Van  Auken  in  1829*  and  is  therefore  to  be  con- 
strued precisely  as  though  it  were  incorporated  into  and 
formed  a  part  of  that  deed.  Now  the  time  when,  and  the 
circumstances  under  which  that  conveyance  was  made,  are, 
as  it  seems  to  me,  of  great  importance  in  the  construction  of 
the  conveyance  itself.  The  same  dam  now  complained  of  was 
then  in  existence,  and  had  existed  for  a  long  period.  It  was 
then,  and  had  for  many  years  been  used  to  supply  a  head  of 
water  to  operate  the  mills  of  the  grantor  a  few  rods  below  the 
premises  granted.  Those  mills  would  be  rendered  useless  and 
valueless  without  a  continuance  of  the  same  right.  No  mines 
or  minerals  had  ever  been  discovered,  nor  does  it  appear  that 
either  of  the  parties  believed,  or  had  any  reason  to  believe, 
that  any  would  ever  be  discovered,  so  as  to  render  the  reser- 
vation, under  the  construction  claimed  by  the  plaintiff  below, 
of  the  least  possible  utility.  These  circumstances  were  in  the 
view  and  contemplation  of  the  parties  at  the  time  this  reser- 
vation was  incorporated  into  the  deed  of  1829,  and  they  de- 
monstrate, to  my  mind,  that  the  intention  was  to  reserve  the 
waters  of  the  Normanskill,  for  the  same  uses  to  which  they 
were  then,  and  had  for  a  long  time  been  applied.  The  con- 


102  CASES  IN  THE  COURT  OF  APPEALS. 

French  t>.  Carliart. 

trary  supposition  involves  an  absurdity  which  ought  not  to  be 
imputed  to  either  of  the  parties.  Upon  the  construction  which 
I  place  upon  the  reservation,  the  reason  and  object  of  it  are 
plain  and  obvious.  Upon  the  construction  claimed  by  the 
plaintiff,  it  seems,  to  say  the  least,  without  any  adequate  ob- 
ject or  aim. 

It  is  a  cardinal  rule  in  the  construction  of  contracts,  that 
the  intention  of  the  parties  is  to  be  enquired  into,  and  if  not 
forbidden  by  law,  is  to  be  effectuated.  Too  much  regard  is 
not  to  be  had  to  the  proper  and  exact  signification  of  words 
and  sentences,  so  as  to  prevent  the  simple  intention  of  the 
parties  from  taking  effect.  And  whenever  the  language 
used  is  susceptible  of  more  than  one  interpretation,  the  Courts 
will  look  at  the  surrounding  circumstances  existing  when 
the  contract  was  entered  into,  the  situation  of  the  parties, 
and  of  the  subject  matter  of  the  instrument.  To  this  ex- 
tent, at  least,  the  well  settled  rule  is,  that  extraneous  evi- 
dence is  admissible  to  aid  in  the  construction  of  written  con- 
tracts. ( Wilson  vs.  Troup,  2  Cow.  195,  228 ;  Parkhurst  vs. 
Smith,  Willes.  Rep.  332 ;  Bradley  vs.  The  Washington,  Alex. 
£  Geo.  S.  P.  (70.,  13  Peters  89 ;  Gibson  vs.  Tyson,  5  Watts. 
34.)  Applying  this  sound  and  rational  principle  to  the  lan- 
guage of  the  reservation  in  question,  and  to  the  extraneous 
circumstances  just  noticed,  and  it  would  seem  impossible  to  err 
in  the  construction. 

Another  rule  of  construction  is,  that  when  the  words  of  a 
grant  are  ambiguous,  the  Courts  will  call  in  aid  the  acts  done 
under  it,  as  a  clue  to  the  intention  of  the  parties.  (Living- 
ston vs.  Ten  Broeck,  16  Johns.  22  ;  Atty.  Genl.  vs.  Parker,  3 
Atk.  576  ;  Atty.  Genl.  vs.  Foster,  10  Ves.  Jr.  338  ;  Weld  vs. 
Hornby,  7  East.  199 ;  Rex  vs.  Osborn,  4  East  327 ;  Doe  vs. 
Ries,  8  Bing.  181  per  Tindal,  C.  J.}  Upon  this  principle 
we  are  permitted  also  to  look  at  the  undisturbed  use  of  the 
right  contested,  on  the  one  side,  and  the  unqualified  acquies- 
cence, on  the  other,  down  to  the  time  of  the  plaintiff's  pur- 
chase of  the  premises  in  1837 ;  and  these  circumstances  are 
also  justly  entitled  to  weight  in  the  construction  of  this  reser- 
vation. 


NEW-YORK,  NOVEMBER,  1847.  103 

French  v.  Carhart. 

I  therefore  come  to  the  conclusion  that  the  unqualified  right 
to  use  the  water  of  the  Normanskill  for  milling  purposes  upon 
the  premises  of  the  defendant,  was  reserved  in  the  deed  of 
1829.  And  that  being  so,  it  followed,  that  the  right  to  flow 
so  much  of  the  land  conveyed  by  that  deed  as  was  necessary 
for  the  reasonable  and  full  enjoyment  of  the  reservation,  was 
also  reserved.  This  reservation  should  be  construed  in  the 
same  way  as  a  grant  by  the  owner  of  the  soil  of  a  like  privi- 
lege ;  for  the  rule  is,  that  what  will  pass  by  words  in  a  grant 
will  be  excepted  by  the  same  words  in  an  exception.  (Shep- 
hard's  Touchstone,  100,  1  Saunders,  326,  n.  6;  Doud  vs. 
Kingseote,  6  Mees.  and  Wels.  197 ;  Hinchliffe  vs.  Kennard, 
5  Bing.  N.  0.}  Now  if  Abel  French,  Sen.,  who  owned  the 
premises  of  both  parties  when  the  deed  of  1829  was  executed, 
had  then  conveyed  the  premises  of  the  defendant  below  with 
"all  the  creeks,  kills,  runs  and  streams  of  water,"  the  right 
to  the  beneficial  enjoyment  of  the  dam,  mills  and  privileges, 
situated  on  those  premises  would  have  passed  by  such  convey- 
ance, as  a  necessary  incident  to  the  subject  matter  actually 
granted,although  not  specifically  named.  (Shephard's  Touch. 
89,Bac.Abr.  Title  Grant,  1.4.  ;  Price  vs.  Braham,  Vaugh- 
aris  Rep.  109.)  Upon  this  principle  if  a  man  having  a  close 
to  which  there  is  no  access  except  over  his  other  lands,  sell 
that  close,  the  grantee  shall  have  a  right  of  way  to  it,  for 
without  it  he  cannot  derive  any  benefit  from  the  grant.  So 
if  the  grantor  should  reserve  that  close  to  himself,  and  sell 
his  other  lands,  the  law  will  presume  a  right  of  way  reserved. 
{Howton  vs.  Frecusson,  8  Term  Rep.  50  ;  Holmes  vs.  G-oring, 
2  Bing.  56  ;  Clark  vs.  Cogge,  Cro.  Jac.  170 ;  Jorden  vs.  At- 
wood,  Owen  Rep.  121 ;  Nichols  vs.  Luce,  24  Pick.  102,  1 
Saund.  323,  n.  6  ;  Collins  vs.  Prentice,  15  Conn.  R.  39,  3 
Kent.  Comm.  421,  422,  5th  Ed.}  The  way  in  the  one  case  is 
granted  by  the  deed,  and  in  the  other  case  reserved.  And 
although  it  is  called  a  way  of  necessity,  yet  in  strictness  the 
necessity  does  not  create  the  way,  but  merely  furnishes  evi- 
dence of  the  intention  of  the  parties. — For  the  law  will  not 
presume  an  intent  that  one  of  the  parties  should  convey  land 


104  CASES  IN  THE  COURT  OF  APPEALS. 

French  v.  Carhart 

to  the  other  in  such  a  manner,  that  the  grantee  can  derive  no 
benefit  from  the  conveyance,  nor  that  he  should  so  convey  a 
portion  as  to  deprive  himself  of  the  enjoyment  of  the  remain- 
der. Under  such  circumstances  the  law  will  give  effect  accord- 
ing to  the  presumed  intent  of  the  parties.  /  The  sound  and 
reasonable  rule  is,  that  whatever  is  necessary  to  the  fair  en- 
joyment of  the  thing  granted  or  excepted,  is  incidentally 
granted  or  excepted.  (Lifords  Case  11,  Coke.  52 ;  Doud  vs. 
Kingscote,  6  Mees.  and  Wels.  174  ;  Hodgson  vs.  Field,  7  East. 
613.) 

In  the  case  before  us,  French,  the  grantor  in  the  deed  of 
1829,  when  he  conveyed  the  premises  overflowed,  to  Van 
Auken,  the  plaintiffs  grantor,  retained  to  himself  the  premi- 
ses below  on  the  same  stream,  and  he  expressly  reserved  the 
stream  itself,  by  the  phrase  "  all  creeks,  kills,  runs,  and  streams 
of  water."  On  the  premises  not  granted  he  possessed  mills, 
which  would  become  worthless,  if  the  reservation  is  to  be  con- 
strued so  as  to  apply  only  to  the  stream  in  its  natural  course. 
Under  these  circumstances  I  cannot  doubt  that  the  phraseology 
employed  by  the  parties  was  intended  to  indicate  the  stream  in 
the  condition  it  then  was,  and  to  reserve  it  for  the  uses  to 
which  it  was  then,  and  had  been  applied.  And  in  adopting 
this  construction,  I  do  not  think  we  do  any  violence  to  the 
language  in  which  the  parties  chose  to  express  themselves. 

I  am  of  opinion  that  the  judgment  of  the  Supreme  Court 
should  be  reversed,  and  a  venire  de  novo  issued  by  that  Court. 

GARDINER,  J.  The  main  question  in  the  cause,  is  as  to  the 
true  meaning  and  effect  of  the  conveyance  from  Van  Auken 
to  the  plaintiff,  or  which  is  equivalent  thereto,  the  effect  of 
the  deed  from  Abel  French,  Sen.,  to  Van  Auken. 

The  reservations,  conditions,  and  covenants  contained  in  the 
lease  from  Ten  Broeck  to  Bullock,  are  made  parts  of  the  deed 
from  A.  French,  Sen.,  to  Van  Auken,  and  of  the  latter  to  the 
plaintiff,  and  must  be  construed  as  I  apprehend  in  the  same 
manner  as  if  the  language  of  the  lease  in  these  particulars  had 
been  incorporated  into  those  deeds  respectively. 


NEW-YORK,  NOVEMBER,  1847.  1Q5 

French  v.  Carhart. 

Such  is  the  legal  inference  from  the  reference  in  those  deeds 
to  the  lease  in  question,  (4  Wend,  374.)  and  the  obvious  im- 
port of  the  terms  adopted  by  the  parties. 

The  premises  are  conveyed  to  Van  Auken,  "  subjeqt  to  a  reni 
of  five  bushels  of  wheat,  one  third  part  of  a  load  of  wood,  and 
to  such  other  covenants,  reservations,  and  conditions,  as  are 
mentioned  in  the  deed  to  Ten  Broeck."  The  reservations  as  to 
the  rent  and  wood  are  placed  upon  the  same  footing  with  the 
covenants,  conditions,  and  reservations  in  the  lease,  and  are 
all  adopted  by  the  parties  in  present^  as  parts  of  the  contract 
then  made. 

The  exception  in  the  lease  above  mentioned  is  in  the  fol- 
lowing words  :  "  Saving  and  always  excepting  to  the  said 
parties  of  the  first  part,  out  of  the  present  grant  and  release, 
all  mines  and  minerals  that  now  are  or  may  be  found  within 
the  premises  hereby  granted  and  released,  and  all  the  creeks, 
kills,  runs  and  streams  of  water."  If  the  exception  had 
stopped  here,  there  probably  would  be  no  difference  of  opin- 
ion as  to  its  construction.  Two  distinct  subjects,  mines  and 
water  are  referred  to,  and  both  are  excepted  by  the  same 
general  terms  from  the  operation  of  the  grant.  The  excep- 
tion then  proceeds  to  a  new  subject, — "  and  so  much  ground 
within  the  same  premises,  as  the  grantor  may  think  requisite 
and  appropriate  at  any  time  hereafter,  for  the  erection  of 
works  and  buildings  for  the  working  of  said  mines ;  also  such 
wood  and  timber,  as  they  may  think  proper  for  the  working 
said  mines,  with  liberty  to  dig  through  and  use  the  ground  for 
either  of  said  purposes,  to  pass  and  repass  with  horses,  &c., 
through  the  premises  and  lay  out  roads  therefor."  The  latter 
clause  of  the  exception  above  quoted,  unquestionably  refers 
to  mines  as  the  principle  subject  with  which  they  are  connect- 
ed, and  to  which  they  are  limited.  The  language  is,  so  much 
ground,  also  such  wood,  as  may  be  thought  necessary  for 
mining  purposes."  But  it  is  not  perceived  how  this  in  the 
slightest  degree  qualifies  or  restricts  the  previous  general  ex- 
ception as  to  the  creeks,  streams,  &c.  The  language  of  the 
exception  in  reference  to  the  latter,  is  not  "  so  much  of  the 

14 


106  CASES  IN  THE  COURT  OF  APPEALS 

French  v.  Carhart, 

creeks,  kills,  runs  and  streams  of  water,"  are  excepted  as 
the  grantor  or  his  assigns  may  think  requisite  and  appropri- 
ate for  mining  purposes,  or  any  other  special  object ;  but  all 
creeks,  &c.,  without  limitation  of  any  kind,  are  reserved  ab- 
solutely. In  confirmation  of  this  view,  we  find  another  clause 
of  the  deed  by  which  it  is  made  a  condition  of  the  grant,  that 
neither  the  grantee  nor  his  assigns  "  do  at  any  time  hereafter 
erect  or  permit  or  cause  to  be  erected,  any  mill,  or  mill  dam 
upon  any  creek,  kill,  or  river,  or  stream  of  water,  within  the 
said  premises."  The  condition  it  will  be  perceived  is  as  broad 
as  the  right  reserved,  if  that  extended  to  all  the  creeks, 
streams,  &c.,  but  it  is  not  in  harmony  with  the  construction 
of  the  Supreme  Court,  which  limits  that  right  to  such  use  of 
the  water  as  may  be  deemed  requisite  for  mining  purposes. 

We  may  ask  why  prohibit  the  grantee  from  the  use  of  the 
water  not  reserved  to  the  grantor,  and  therefore,  of  no  value 
to  him  ? 

The  answer  given  by  the  learned  Judge,  who  delivered  the 
opinion  of  the  Supreme  Court  is,  that  the  lessors  or  their 
friends  might  have  claimed  a  monopoly  of  the  milling  busi- 
ness. This  is  certainly  a  substantial  reason  why  the  grantor 
should  reserve  all  the  water,  but  not  a  very  satisfactory  ex- 
planation why  the  condition  should  be  more  extensive  than  the 
exception.  I  feel  great  confidence,  therefore,  in  the  opinion, 
that  the  construction  given  to  this  part  of  the  grant  by  the 
defendant  below,  is  the  correct  one,  and  that  the  Circuit 
Judge  erred  in  refusing  to  charge  as  requested,  "  that  the 
reservation  in  said  deed  of  "  all  creeks,  kills,  streams  and  runs 
of  water,"  was  an  absolute  reservation  of  the  same  for  any 
and  every  purpose." 

It  was  argued  that  the  conveyance  from  French  to  Van 
Auken,  reserved  no  right  to  flow  any  part  of  the  lands  con- 
veyed, and  must,  therefore,  be  deemed  absolute,  and  the 
grantor  was  thereby  divested  of  all  right  to  flow  the  premises 
in  question. 

We  have  attempted  to  show  that  the  reservation  in  the  lease 
from  Ten  Broeck  to  Bullock,  of  "  all  creeks,  kills,  runs  and 


NEW-YORK,  NOVEMBER,  1847.  107 

French  v.  Carhart. 

streams  of  water,"  was  unqualified.  To  what  did  the  parties 
suppose  these  terms  to  relate  in  1829,  when  the  deed  from 
French  to  Van  Auken  was  executed  ?  To  the  state  of  the 
stream  as  it  was  at  the  time  of  the  conveyance  ?  or  as  it  had 
been  in  1793,  the  date  of  the  lease  to  Bullock  ?  Their  in- 
tention is  to  be  collected  from  the  conveyance  itself,  and  the 
attending  circumstances. 

And  first,  none  of  the  words  of  the  reservation  above 
quoted  have  any  definite  legal  meaning. 

A  creek,  according  to  "Webster,  sometimes  signifies  a  small 
bay,  inlet,  or  cove,  and  more  generally  in  this  country,  a 
small  river.  Kill,  is  a  Dutch  word,  signifying  a  channel  or  bed 
of  the  river,  and  hence  the  river  or  stream  itself.  A  stream, 
means  a  river,  brook,  or  rivulet,  any  thing  in  fact  that  is 
liquid  and  flows  in  a  line  or  course. 

It  is  presumed  that  a  creek  or  stream  does  not  cease  to  be 
such,  merely  because  its  course  may  be  opposed  by  some 
obstruction  whether  natural  or  artificial.  They  do  not  cease 
to  be  streams,  because  in  consequence  of  such  obstruction 
their  water  may  be  deepened  or  flow  with  a  diminished  veloci- 
ty. They  would  still  flow,  and  the  same  quantity  would  pass 
any  given  point  in  its  channel  in  the  same  time,  and  they 
would  continue  in  common  parlance  to  be  designated  by  their 
former  names. 

The  language  of  the  reservation  is  therefore  equally  appli- 
cable to  the  condition  of  the  stream  as  it  was  in  1829,  or 
in  1793. 

In  the  second  place,  the  circumstances  attending  the  con- 
veyance point  to  the  former  period  exclusively.  The  legal 
presumption  is  that  the  parties  were  upon  the  land  when  the 
conveyance  was  executed  to  Van  Auken.  (2  Phillips  Ev.  8 
Lond.  ed.,  731;  Cowen  and  Hill's  notes,  2  part,  1399.) 

Let  us  assume  therefore,  what  is  substantially  proved,  that 
prior  to  the  sale  in  1829,  to  Van  Auken,  French  had  taken 
the  former  to  the  premises,  and  pointed  out  to  him  the  dam, 
and  its  effect  upon  the  stream,  that  it  caused  the  water  to  set 
back  one  mile  or  more  ;  to  overflow  a  part  of  the  premises  he 


108  CASES  IN  THE  COURT  OF  APPEALS. 

French  v.  Carhart. 

was  about  to  purchase,  and  the  use  to  which  the  water  was 
applied ;  and  had  then  said  to  him  in  the  language  of  the 
deed,  I  "  except  and  reserve  all  this  creek,  kill,  stream,  or 
run  of  water,  and  you  are  prohibited  from  erecting  or  per- 
mitting or  causing  to  be  erected  any  mill  or  mill  dam  thereon, 
and  you  agree  that  you  will  not  give  or  cause  to  be  given  any 
manner  of  let  or  obstruction  whatsoever  to  my  prejudice  in  the 
full  enjoyment  of  the  rights,  titles,  and  privileges  saved  to  me 
by  the  saving  and  exception  aforesaid." 

I  do  not  say  that  the  grantee  was  bound  so  to  understand, 
but  it  seems  to  me  that  he  might  naturally  infer,  that  the 
reservation  of  the  grantor,  applied  to  the  stream  as  it  then 
was,  and  not  as  it  would  be  if  the  dam  was  removed. 

The  phrase  "  full  enjoyment"  for  which  the  grantee  cove- 
nants, is  to  be  taken  distributively,  and  applied  as  well  to 
creeks  and  streams  as  to  mines.  This  follows  necessarily,  if 
it  be  admitted  that  the  reservation  of  the  former  was  absolute, 
and  if  this  be  granted,  it  is  difficult  to  explain  how  the  grant- 
or, having  reserved  the  stream,  was  to  enjoy  the  privilege 
saved  to  him  without  the  use  of  the  water.  Of  course  the 
proper  exercise  of  the  privilege  was  a  question  of  fact  for  the 
jury.  In  Provost  vs.  Calder,  (2  Wend.  517.)  the  exception 
in  the  deed  was  as  follows: — "Excepting  and  reserving  to 
myself,  &c.,  the  sole  and  only  right  of  the  stream  of  water 
running  through  the  land  demised,  and  the  party  of  the 
second  part  is  not  to  erect  or  build  any  kind  of  water  works 
on  said  stream  or  creek,  but  the  same  I  hereby  reserve  to 
myself  as  aforesaid."  It  will  be  seen  that  the  exception  and 
prohibition  are  almost  in  the  terms  of  the  one  under  considera- 
tion. In  the  last  clause,  "  the  same  I  hereby  reserve  to  my- 
self as  aforesaid,"  the  immediate  antecedent  of  "same"  is, 
creek  or  stream,  and  the  reservation  to  which  the  word 
"aforesaid"  applies,  was  of  the  water,  not  of  the  right  to 
build  water  works,  a  right  not  in  terms  reserved  to  the  grantor, 
but  which  the  grantee  was  prohibited  from  exercising.  The 
Court,  however,  looking  to  the  intention  of  the  parties  very 
properly  determined  that  the  right  to  erect  water  works  on 


NEW  YORK.  NOVEMBER,  1847.  109 

French  v.  Carhart. 

the  lands  granted  was  reserved.  If  we  substitute  the  cove- 
nant of  Van  Auken  in  this  case,  for  the  last  clause  of  the 
exception  in  the  case  cited,  the  sentence  would  read  thus : 
"  Excepting,  &c.,  and  the  party  of  the  second  part  is  not  to 
erect  or  build  any  kind  of  water  works  on  said  creek,  but  he 
hereby  agrees  not  to  give  or  cause  to  be  given  any  manner  of 
let  or  obstruction  to  said  grantor  in  the  full  enjoyment  of  the 
right  and  privilege  saved  to  him  by  the  saving  and  exception 
aforesaid."  If  the  exception  in  Provost  vs.  Calder,  was  pro- 
perly adjudged  to  reserve  the  land,  the  covenant  above  refer- 
red to  taken  in  connection  with  the  prohibition  and  reservation, 
must  be  sufficient  to  reserve  a  mere  easement.  It  is  true,  i 
lease  was  taken  in  that  case,  and  the  circumstance  is  adverted 
to  as  evidence  of  the  understanding  of  the  parties.  In  this 
also,  we  have  the  fact  that  Van  Auken  occupied  the  land  for 
ten  years,  without  objecting  to  the  dam  or  the  flowing  of  his 
premises.  The  evidence  of  a  practical  construction  is  as 
strong  in  the  one  case  as  the  other. 

Upon  the  ground  therefore  first,  that  the  reservation  of  all 
creeks,  streams,  &c.,  in  the  lease  of  1793,  was  absolute,  and 
second,  that  by  the  true  construction  of  the  conveyance  from 
French  to  Van  Auken,  the  right  to  flow  the  premises  for 
milling  purposes,  to  the  extent  that  they  had  been  previously, 
and  were,  at  the  time  of  the  conveyance,  overflowed,  was 
reserved  by  the  grantor,  the  judgment  of  the  Supreme  Court 
should  be  reversed,  and  venire  de  novo  issue. 

JOHNSON,  J.  The  deed  from  French  to  Van  Auken,  exe- 
cuted in  1829,  is  to  be  read  and  construed  as  though  the 
reservations  and  conditions  of  the  original  lease  were  inserted 
in  it,  and  were  part  and  parcel  of  the  language  of  the  instru- 
ment. We  are  then  to  look  at  the  whole  instrument  and  give 
it  such  a  construction  as  shall  give  full  force  and  effect  as  far 
as  possible  to  the  grant  and  reservations  according  to  the  sense 
in  which  it  was  mutually  understood  and  relied  upon  by  the 
parties  at  the  time.  The  question  to  be  determined  is, 
whether  the  Normanskill  was  intended  by  the  parties  to  be 


110  CASFS  IN  THE  COURT  OF  APPEALS. 

French  v.  Carhart 

reserved  for  the  working  of  mines  merely,  as  assumed  by  the 
Supreme  Court  ?  It  is  to  be  observed  that  the  phrase  "  mining 
purposes"  used  throughout  by  the  Circuit  Judge,  the  Supreme 
Court,  and  Counsel  for  the  plaintiff  below,  is  not  to  be  found 
in  the  deed.  The  language  there  employed  is  "working 
mines."  By  referring  to  the  reservations  it  will  be  seen  that 
there  is  a  reservation  of  "  so  much  ground  within  the  same 
premises,"  as  the  grantor,  his  heirs  and  assigns  might  think 
necessary  "  for  the  erection  of  the  works  and  buildings,  for 
the  convenient  working  of  the  said  mines."  Wood,  firewood, 
and  timber  are  also  reserved  "  to  use  in  building,  repairing, 
accommodating  and  working  said  mines."  But  it  nowhere 
appears  that  the  grantor  contemplated  using  the  water-power 
in  working  the  mines  whenever  or  wherever  they  might  be  found, 
or  putting  it  to  any  other  use  than  he  was  making  at  the  time 
of  the  grant  and  reservation.  Indeed  it  is  quite  as  difficult  to 
perceive  how  the  stream  could  be  used  to  the  least  advantage 
for  working  mines,"  as  it  is  to  believe  that  French  intended 
to  grant  to  Van  Auken  the  right  to  destroy  his  mill  and  dam 
immediately  below,  and  only  to  reserve  its  use  for  this  visionary 
and  utterly  impracticable  service.  Working  mines  consists 
mainly  in  excavating,  draining,  and  raising  ore  ;  a  service  per- 
formed by  miners,  and  entirely  distinct  and  separate  from 
the  business  of  smelting  ores  and  forging  metals,  where  water 
or  steam-power  is  necessarily  employed.  Again,  look  at  the 
condition.  If  the  grantor  intended  only  to  reserve  the 
streams,  &c.,  for  mining  purposes,  why  not  prohibit  the  grantee 
from  erecting  works  to  work  mines  ?  Why  confine  the  prohi- 
bition to  mills  and  mill  dams  ?  and  that  too  under  a  penalty 
so  stringent  and  sweeping  as  the  forfeiture  of  the  whole  estate, 
unless  he  supposed  he  had  by  the  reservation  secured  the  use 
of  the  water  for  such  purposes  to  himself. 

The  learned  Justice  who  delivered  the  opinion  of  the  Su- 
preme Court,  adverting  to  this  condition  in  the  deed  or  lease, 
says  :  "  The  lessors  or  their  friends  might  have  claimed  a 
monopoly  of  the  milling  business  for  the  neighborhood,  and 
the  condition  might  have  been  inserted  to  secure  that."  I 


NEW-YORK,  NOVEMBER,  1847.  HI 

French  v.  Carhart. 

think  it  quite  obvious  that  such  was  the  object  of  inserting  this 
condition.  But  how  was  that  object  to  be  secured  ?  Surely 
not  by  reserving  the  water  merely  for  working  mines  !  The 
construction  of  the  Supreme  Court  shuts  up  the  stream  forever 
for  milling  purposes,  unless  these  conflicting  titles  shall  again 
chance  to  unite  in  the  same  person  ;  and  whatever  may  be  its 
capacity  for  useful  employment,  or  the  wants  and  necessities 
of  the  public,  it  can  only  be  brought  into  requisition  on  the 
discovery  of  a  mine,  in  some  location  where  hydraulic  power 
may  be  "  conveniently"  tasked  in  excavating,  and  raising  ore 
or  other  mineral  substance  to  the  surface. 

This  construction  seems  to  me  as  much  at  war  with  all  sound 
legal  rules  of  interpretation  as  it  is  with  a  judicious  public 
policy.  I  think  we  shall  best  give  effect  to  the  spirit,  and 
intent  of  the  instrument  and  the  intentions  of  the  parties  by 
holding  that  in  judgment  of  law,  the  grantor  reserved  the 
right  to  use  the  water  as  he  was  then  using  it,  and  as  it  had 
been  used  long  antecedent  to  the  reservation ;  and  that  we  are 
bound  to  presume  such  to  have  been  the  intentions,  unless  it 
is  limited  and  conferred  to  some  other  or  different  use  by  express 
and  unequivocal  terms. 

But  it  is  said  that  if  the  reservation  of  the  stream  is  abso- 
lute and  not  limited  to  working  mines  merely,  still  the 
defendant  below  has  no  right  to  maintain  his  dam  or  flow  the 
land  of  the  plaintiff  below  beyond  the  ancient  and  natural 
bed  of  the  stream.  This  would  be  so,  if  at  the  time  of  the 
grant  the  stream  flowed  in  its  ancient  and  natural  channel,  and 
there  was  nothing  in  the  reservation  to  show  the  purpose  for 
which  it  was  reserved.  Here,  however,  it  was  different.  At 
the  date  of  this  grant,  and  for  a  long  time  prior  to  that,  the 
defendant's  mill-dam  had  been  established,  and  if  we  are  to 
believe  the  testimony  of  the  witnesses,  French  and  Van 
Auken  flowed  the  water  upon  the  premises  in  question,  as  high 
as  it  was  at  the  commencement  of  this  suit,  and  so  continued 
without  objection  up  to  the  time  of  the  plaintiff's  purchase,  in 
1837.  As  far  back  as  1793,  as  appears  by  Ten  Broeck's 
deed,  the  stream  was  used  for  a  saw-mill,  and  it  might  be  a 


112  CASES  IN  THE  COURT  OF  APPEALS. 

French  v.  Carhart 

task  of  no  little  difficulty  at  this  day  to  discover  the  ancient 
bed  of  the  stream  upon  the  premises  in  question. 

I  think  there  cannot  be  a  reasonable  doubt  that  the  reser- 
vation in  Van  Aukin's  deed,  was  a  reservation  of  the  use  of 
the  stream,  as  its  use  and  flow  were  then  established,  and 
that  it  was  so  understood,  and  intended  by  the  parties.     The 
reservation  and  the  condition,  taken  together,  fully  justify 
such  a  conclusion.     In  Provost   vs.  Calder,  (2  Wend.  517.) 
the  reservation  was  "  the  sole  and  only  right  of  the   stream 
of  water  running  through  the  above  demised  piece  of   land, 
and  the  party  of  the  second  part  is  not  to  erect  or  build  any 
kind  of  water-works  whatsoever,  on  said  stream  of  water  or 
creek,  but  the  same  I  hereby  reserve  to  myself  as  aforesaid," 
and  this  the  Court  held  to  be  a  reservation  of  the  right  to  use 
the  water  power  upon  the  land.     In  that  case,  as  in  the  one 
before  us,  it  will  be  seen  that  there  was  only  a  reservation  of 
the  stream  coupled  with  a  provision  that  the  other  party  should 
erect  no  water-works  upon  it.     The  cases  of  Burr  vs.  Mills, 
(21  Wend.  290,  and  6  Connecticut,  289,)  relied  upon  by  the 
plaintiff's  counsel,  are  cases  of  a  conveyance  without  any  re- 
servation, and  are  not  in  point.     Here  there  is  a  reservation 
of  a  stream  which  the  party  was  then  using,  coupled  with  an 
absolute  prohibition  of  the  same  use  to  the  other  party,  and 
the  only  question  is,  as  to  the  nature,  purpose,  and  extent  of 
the  reservation.     I  am  of  opinion  that  the  Judge  erred  in  the 
construction  of   the  reservation  in  the  deed,  and  that  the 
judgment  should  be  reversed. 

JONES,  J.  and  WRIGHT,  J.,  concurred  in  the  result  of  the 
preceding  opinions. 

BRONSON,  J.,  delivered  an  opinion  in  favor  of  affirming  the 
judgment,  with  whom  RUGGLES,  and  GRAY,  Js.,  concurred. 


113 

HA     203 
AD 


NEW-YORK,  NOVEMBER,  1847.  113 


Coggill  v.  The  American  Exchange  Bank. 


COQGILL  vs.  THE  AMERICAN  EXCHANGE  BANK. 

One  of  two  partners  drew,  in  the  name  of  his  firm,  a  bill  upon  the  plaintiff,  payable 
to  the  order  of  B,  and  having  forged  the  name  of  B  as  endorser  upon  the  bill,  ...  5 ,„, 

presented  it  to  the  Bank  of  Central  New  York,  had  it  discounted  in  the  regular     ^Q  5^gQ 

course  of  business,  and  applied  the  proceeds  to  his  private  use.    The  Cashier     159  5436 

of  the  Bank  endorsed  the  bill  and  transmitted  it  to  the  defendants  for  collection,     159  "459 

and  the  plaintiff  accepted  and  paid  it  to  the  defendants.  After  discovering  that 
the  payee's  endorsement  was  forged,  he  sued  to  recover  back  the  money  so 
paid.  Held,  that  the  action  could  not  be  maintained. 

B,  the  payee,  being  a  stranger  to  the  transaction,  and  having  no  interest  in  the 
draft,  his  endorsement  was  not  necessary  in  order  to  transfer  a  good  title  to 
the  party  discounting  the  paper,  or  to  entitle  such  party  to  receive  the  money 
upon  it. 

The  plaintiff,  having  accepted  and  paid  the  bill  under  these  circumstances,  would 
have  a  right  to  charge  the  amount  against  the  funds  of  the  drawers  in  his 
hands,  or,  if  there  were  none,  to  maintain  an  action  against  them  for  money 
paid  to  their  use. 

The  case  of  The  Canal  Sank  vs.  The  Bank  of  Albany,  (1  Hill  287,)  commented 
upon  and  approved  ;  but  distinguished  from  this  case,  inasmuch  as  there,  the 
endorser  whose  name  was  forged,  was  the  owner  of  the  draft,  and  the  only 
person  entitled  to  receive  the  money  upon  it.  Per  BRONSON,  J. 

It  seems  that  the  drawers,  after  having  passed  the  draft  with  the  payee's  name 
endorsed  upon  it,  and  received  the  avails  of  it  in  an  action  against  them,  would 
be  estopped  from  controverting  the  genuineness  of  the  endorsement. 

Where  a  bill  is  put  in  circulation  by  the  drawer,  with  the  endorsement  of  the 
payee  forged  upon  it,  a  bona  fide  holder  may  treat  it  as  a  bill  payable  to  bearer. 
Per  BRONSON,  J. 

ERROR  to  the  Supreme  Court,  where  Coggill  sued  the 
American  Exchange  Bank  in  assumpsit,  to  recover  back  the 
money  which  he,  as  the  drawee  and  acceptor,  had  paid  to  the 
bank  as  the  holders  of  a  bill  of  exchange,  upon  which  the 
name  of  the  payee  had  been  forged.  The  case  was  this; 
Shapley  and  Billings  were  partners  in  business  at  Earlville, 
Madison  county,  and  the  plaintiff  resided  and  did  business  in 
the  city  of  New  York.  On  the  28th  of  July,  1843,  Charles 
S.  Billings,  one  of  the  partners,  drew  a  bill  in  the  name  of 
the  firm,  on  the  plaintiff,  for  $1,500,  payable  to  the  order 
of  Truman  Billings,  ten  days  after  sight.  Charles  S.  Bil- 
lings forged  the  name  of  Truman  Billings,  as  endorser  on  the 

15 


114  CASES  IN  THE  COURT  OF  APPEALS. 


Oofgill  v.  The  American  Exchange  Bank. 


draft,  and  also  the  name  of  Truman  Billings,  Junior ;  and 
with  those  names  upon  the  bill,  presented  it  to  the  bank  of 
Central  New  York,  at  Utica,  for  discount,  on  the  29th  of 
July ;  and  the  bank  discounted  the  bill  and  paid  the  money  to 
Charles  S.  Billings.  The  discount  was  made  in  the  usual 
course  of  business,  the  bank  having  no  knowledge  of  the  for- 
gery, nor  any  reason  to  suppose  that  Billings  was  not  acting, 
as  he  professed  to  do,  for  his  firm,  though  in  point  of  fact  he 
applied  the  money  to  his  own  private  use.  The  bank  endorsed 
the  draft,  and  sent  it  to  the  defendants  for  collection.  The 
plaintiff  accepted  the  bill,  and  paid  the  same  at  maturity,  on 
the  12th  of  August,  to  the  defendants.  The  plaintiff  had  no 
funds  of  the  drawers  in  his  hands,  but  accepted  and  paid  the 
bill  for  their  accommodation,  in  pursuance  of  an  agreement 
made  with  Charles  S.  Billings  to  do  so.  Charles  S.  Billings 
absconded,  about  the  7th  of  August,  on  account  of  this  and 
other  forgeries.  On  learning  that  the  names  of  the  endorsers 
had  been  forged,  the  plaintiff,  on  the  18th  of  August,  called 
on  the  defendants  to  refund  the  money,  and  then  brought  this 
action  to  recover  it  back.  On  the  trial,  the  Circuit  Judge 
charged  the  jury  that  the  plaintiff  was  not  entitled  to  recover, 
and  the  plaintiff  excepted  to  his  opinion.  The  jury  found  a 
verdict  for  the  defendants,  which  the  Supreme  Court  refused 
to  set  aside,  and  rendered  judgment  for  the  defendants.  The 
plaintiff  brings  error. 

B.  D.  Noxon  and  J.  Van  Buren,  (Atty.  Genl.)  for  plaintiff 
in  error. 

J.  A.  Spencer,  for  defendants  in  error, 

Points  for  plaintiff  in  error : 

I.  The  endorsement  of  the  name  of  the  payee  being  forged, 
the  defendant  had  no  title  to  the  bill,  and  the  payment  was 
therefore  made  without  consideration,  and  under  a  mistake  of 
fact.  (Canal  Bank  vs.  Bank  of  Albany,  1  Hill  289  ;  Talboi 
vs.  Bank  of  Rochester,  ib.  295  ;  6  Barn,  and  Cress.  G71 ;  9 


NEW-YORK,  NOVEMBER,  1847.  H5 


Coggill  v.  The  American  Exchange  Bank. 


i&.  902 ;  9  D.  £  R.  731 ;  5  ib.  403 ;  Oh.  on  Sills,  430,  198, 
265;  4  T.  R.  28;  1  E.  Bl.  607;  1  Car.  $  Payne  297; 
Doug.  633.) 

II.  The  plaintiff,  by  his  acceptance  of  the  draft,  contracted 
to  pay  to  the  order  of  Truman  Billings,  and  being  an  accom- 
modation acceptor,  he  may  insist  on  the  letter  of  his  contract. 

III.  Had  the  plaintiff  refused  to  pay  the  bill,  the  defend- 
ant could  not  have  compelled  him,  inasmuch  as  he  could  not 
make  title  through  a  forgery. 

IY.  The  acceptance  of  the  bill  was  no  admission  of  the 
genuineness  of  the  endorsements.  The  Central  Bank,  on  the 
other  hand,  by  endorsing  the  bill  before  it  was  accepted, 
guaranteed  the  genuineness  of  the  previous  endorsements,  and 
thus  gave  them  credit  with  the  plaintiff,  and  it  should  not  now 
be  permitted  to  take  advantage  of  its  own  wrong. 

V,  The  plaintiff  has  no  remedy  over  against  the  .firm  of 
Shapley  and  Billings,  the  drawers. 

Points  for  defendant,  in  error : 

I.  Truman  Billings,  the  payee,  never  had  any  interest  in 
the  draft,  and  therefore  his  endorsement  was  not  necessary 
to  pass  the  title  to  the  Bank  of  Central  New  York.     The 
bank,  by  receiving  it  from  Shapley  and  Billings,  the  drawers, 
became  the  owner,  and  had  the  right  to  receive  the  money 
upon  it.     (Oh.  on  Bills  220,  9th  Am.  from  the  8th  London 
ed;  ib.  178;  2  Bailey  Rep.  547;  5  Greenl.  Rep.  282;  13 
Mass.  304.) 

II.  As  between  the  drawers  and  acceptor,  the  bill  is  to  be 
regarded  as  payable  to  the  drawer's  order,  or  to  the  order  of 
a  fictitious  person,  or  to  the  order  of  the  Cashier  of  the  Cen- 
tral Bank.     (Pletts  vs.  Johnson,  1  Hill  112.) 

III.  The  plaintiff,  as  acceptor,  had  no  interest  in  the  en- 
dorsements, and  no  remedy  upon  them.     He  stands  as  the 
maker  of  a  note,  and  the  bank  alone  was  interested  in  having 
genuine  endorsers.     (Ch.  on  bills  267,  same  ed.  as  above; 


116  CASES  IN  THE  COURT  OF  APPEALS. 


Coggill  v.  The  American  Exchange  Bank. 


Griffin  vs.  Rudd,  21  Wend.  502,  504 ;  Suydam  vs.  Westfall, 
4  Hill  211,  217.) 

IV.  The  plaintiff  is  not  liable  to  Truman  Billings,  the 
payee,  for  the  money  upon  this  draft.  Truman  Billings 
having  no  interest  in  the  draft,  has  no  claim  to  recover  upon 
it.  The  case,  therefore,  does  not  come  within  the  reason  of 
the  rule  -which  allows  an  acceptor,  who  has  paid  the  draft 
upon  the  faith  of  a  forged  endorsement,  to  recover  it  back. 

BRONSON,  J.  In  an  action  against  the  drawee  of  a  bill,  it 
is  not  enough  for  the  holder  to  prove  that  it  has  been  accept- 
ed, without  also  establishing  his  title  to  the  bill.  And  if  the 
acceptor,  under  a  mistake  as  to  the  fact  of  ownership,  has 
paid  the  bill  to  one  who  had  no  title,  the  money  may  be  re- 
covered back,  although  it  was  paid  to  a  bona  fide  holder. 
(Canal  Bank  vs.  Bank  of  Albany,  1  Hill  287.)  The  plaintiff 
relies  upon  this  case  as  not  being  distinguishable  from  he 
own ;  but  he  is  under  a  great  mistake.  It  is  not  expressly 
stated  in  the  report  of  that  case,  that  Bentley,  the  payee 
named  in  the  draft,  was  the  owner  of  it ;  nor  was  it  necessary 
that  the  fact  should  be  stated,  for  where  nothing  appears  to 
the  contrary,  the  payee  must  be  taken  to  be  the  owner.  It 
may,  however,  be  proper  to  mention,  that  it  did  expressly  ap- 
pear that  Bentley  was  the  owner  of  the  draft.  My  recollec- 
tion on  the  subject  has  been  confirmed  by  inquiries  made  since 
the  argument.  In  the  case  now  before  us,  the  fact  is  fully 
established,  that  Billings,  the  payee  named  in  the  bill,  never 
was  the  owner  of  it ;  nor  was  it  drawn  with  the  intent  that 
he  should  either  endorse  it,  or  have  any  interest  in,  or  con- 
cern with  it.  In  the  one  case,  the  payee  owned  the  bill,  and 
could  have  maintained  actions  upon  it,  both  against  the  ac 
ccptors  and  the  drawers  ;  while  in  the  other,  the  payee  has  no 
interest  in  the  bill,  and  cannot  maintain  an  action  upon  it,  for 
his  own  benefit,  against  any  one.  In  the  one  case,  payment 
to  the  holder  of  the  bill  would  be  no  protection  against  an 
action  by  the  payee,  because  he  was  the  true  owner  ;  while  in 
the  other,  the  payee,  having  no  title,  could  in  no  event  have  a 


NEW-YORK,  NOVEMBER,  1847.  H7 

Coggill  v.  The  American  Exchange  Bank. 

legal  claim  to  the  money.  The  distinction  between  the  two 
cases,  is  very  material  and  is  quite  too  obvitms  to  be  mistaken 
by  any  one. 

Although  the  payee,  Billings,  had  no  interest  in  the  bill, 
the  question  still  remains  whether  the  Bank  of  Central  New 
York,  in  whose  place  the  defendants  stand,  acquired  a  good 
title  to  it.  We  think  they  did.  Shapley  and  Billings  drew 
the  bill,  and  passed  it  to  the  bank,  with  the  name  of  the 
payee  endorsed  upon  it.  By  that  act  they  plainly  affirmed 
that  the  endorsement  was  genuine,  so  that  the  bill  might  be 
negotiated  by  delivery.  By  means  of  this  representation  they 
induced  the  bank  to  discount  the  bill ;  and  if  the  bank  had 
brought  an  action  upon  it  against  them,  counting  in  the  usual 
form,  as  upon  a  bill  payable  to  Truman  Billings,  and  endorsed 
by  him,  the  drawers  would,  upon  the  plainest  principles  for 
maintaining  honesty  and  fair  dealing,  have  been  estopped  from 
controverting  the  genuineness  of  the  endorsement.  If  an 
authority  is  needed  in  support  of  this  doctrine,  MeacJier  vs. 
Fort  (3  Hill  So.  Oar.  227,  and  Miley's  Law  Oas.  248,)  is  a 
case  directly  in  point. 

There  is  another  form  of  declaring  in  which  the  bank  might 
have  recovered  on  the  bill.  As  the  payee  had  no  interest,  and 
it  was  not  intended  that  he  should  ever  become  a  party  to  the 
transaction,  he  may  be  regarded,  in  relation  to  this  matter, 
as  a  nonentity ;  and  it  is  fully  settled  that  when  a  man  draws 
and  puts  into  circulation  a  bill  which  is  payable  to  a  fictitious 
person,  the  holder  may  declare  and  recover  upon  it  as  a  bill 
payable  to  bearer.  ( Vere  vs.  Lewis,  3  T.  R.  182  ;  Minet  vs. 
Gibson,  id.  481,  and  1  H.  Slack,  569,  S.  C.  in  the  House 
of  Lords ;  Collins  vs.  Emett,  1  H.  Black,  313  ;  Plets  vs. 
Johnson,  3  Hill  112.)  In  legal  effect,  though  not  in  form, 
the  bill  is  payable  to  bearer ;  and  it  is  always  good  pleading 
to  state  the  legal  effect  of  the  contract.  It  is  said  in  some 
of  the  cases,  (and  see  Bennett  vs.  Farnell,  1  Camp.  130, 
and  180,  b.  note,)  that  when  the  action  is  against  the  accept- 
or of  such  a  bill,  it  must  appear,  that  he  knew  the  payee 
was  a  fictitious  person.  But  I  can  see  no  sufficient  reason  for 


118  CASES  IN  THE  COURT  OF  APPEALS. 

Coggill  v.  The  American  Exchange  Bank. 

laying  down  such  a  rule.  It  is  enough  that  the  holder  has  a 
a  good  title  to  the  bill,  so  that  the  acceptor  on  paying  it,  can 
properly  charge  the  amount  against  the  funds  of  the  drawer 
in  his  hands,  if  there  be  any ;  and  if  there  be  none,  that  ho 
may  have  an  action  against  the  drawer  for  money  paid  to  his 
use.  As  the  acceptor  can  never  resort  to  the  payee  or  endor- 
ser, he  has  no  interest  in  knowing  through  whose  hands  the 
bill  has  passed,  except  for  the  purpose  of  ascertaining  that 
the  holder  has  a  good  title. 

It  may  be  well  enough,  by  way  of  discouraging  such  transac- 
tions, to  hold,  that  one  who  discounts  a  bill  for  the  benefit  of 
the  drawer,  with  knowledge  of  the  fact  that  the  payee  is  a 
fiictitious  person,  cannot  recover  against  the  acceptor.  (Hun- 
ter vs.  Jcfferey,  Peake.  Add.  (7a«.,  146.)  But  that  doctrine 
has  nothing  to  do  with  this  case  ;  for  the  bank  had  no  know- 
ledge or  suspicion  at  the  time  tli2  bill  was  discounted,  that  the 
name  of  the  payee  had  been  forged. 

The  point  has  been  adjudged,  that  when  the  maker  of  a 
promissory  note  puts  it  into  circulation,  with  a  forged  endorse- 
ment of  the  name  of  the  payee  upon  it,  a  bona  fide  holder 
may  sue  and  recover  against  the  maker  as  upon  a  note  paya- 
ble to  bearer  ;  (Fort  vs.  Meacher,  Supra.}  and  the  same  rule 
has  been  applied  where  the  payee  had  no  interest  in  the  note, 
and  it  was  not  intended  that  he  should  become  a  party  to  the 
transaction.  (Foster  TS.  Shattuck,  2  N.  Hamp.  446.)  Not- 
withstanding what  was  said  in  Dana  vs.  Underwood,  (19  Pick. 
99.)  I  think  this  sound  doctrine  ;  and  it  is  applicable  to  the 
case,  of  a  bill  put  into  circulation  by  the  drawer  with  a  forged 
endorsement  upon  it.  A  bona  fide  holder  may  treat  it  as  a 
bill  payable  to  bearer. 

The  bank  had  a  good  title  to  the  bill  as  against  the  drawers, 
and  the  payee  ;  and  that  was  a  good  title  against  all  the  world. 
No  one  is  injured  by  this  doctrine.  The  bill  has  answered 
the  end  for  which  it  was  drawn.  The  plaintiff  has  paid  money 
for  the  drawers  in  pursuance  of  their  request ;  and  he  has  the 
same  remedy  against  them  that  he  would  have  had  if  the 
endorsement  had  .been  genuine. 


NEW-YORK,  NOVEMBER,  1847.  H0 

Coggill  v.  The  American  Exchange  Bank. 

I  have  spoken  of  the  drawing  and  negotiating  the  bill  as 
the  act  of  both  of  the  partners,  although  only  one  of  them 
was  present  at  the  time,  because  such  was  the  legal  effect  of 
the  transaction.  It  is  said  that  Charles  S.  Billings  was  not 
the  agent  of  his  partner  Shapley  for  the  purpose  of  commit- 
ting a  forgery ;  and  that  is  very  true  ;  but  his  right  to  draw 
and  negotiate  bills  in  the  name  of  the  firm  has  not  been 
questioned  ;  and  that  is  all  that  is  material  to  the  present  in- 
quiry. Is  it  not  important  to  know  who  put  the  name  of 
Truman  Billings  as  endorser  upon  the  bill.  It  is  enough  that 
Truman  Billings  was  not  the  owner  of  the  bill,  and  that  it 
was  passed  to  the  bank  with  his  name  upon  it. 

As  the  bank  discounted  the  bill  for  the  firm  of  Shapley 
and  Billings,  it  is  of  no  importance  that  Billings  applied  the 
money  to  his  own  private  use,  instead  of  carrying  it  into  the 
affairs  of  the  partnership.  And  in  relation  to  the  estoppel^ 
it  is  quite  clear  that  the  declarations  and  acts  of  one  of  the 
partners,  made  and  done  while  transacting  the  partnership 
business,  and  relating  to  it,  are  equally  conclusive  upon  both 
of  them.  We  have  not  been  referred  to  any  book  which  holds 
a  different  doctrine. 

The  plaintiff  probably  accepted  and  paid  the  bill  under  the 
mistaken  assumption  that  the  endorsement  was  genuine.  But 
he  was  not  mistaken  about  the  main  fact  which  he  was  con- 
cerned to  know,  which  was,  that  the  holder  was  the  owner  of 
the  bill.  Having  paid  the  money  to  the  proper  person,  the 
plaintiff  has  all  the  rights  against  the  drapers  which  he  would 
have  had  if  the  endorsement  had  been  made  by  Truman  Bil- 
lings ;  and  there  is  no  principle  upon  which  this  action  can 
be  maintained. 

Judgment  affirmed. 


120  CASES  IN  THE  COURT  OF  APPEALS. 


Hoes  and  others  v.  Van  Hoesen. 


120 

a     1  HA  271 
2         '507* 

h  4i       «513    HOES,  and  MARY,  his  wife,  and  EAGER,  and  ANNA,  his  wife, 
'437J          Appellants,  vs.  JOHN  M.  VAN  HOSEN,  Respondent. 

The  general  rule  is  that  the  personal  estate  of  a  testator  is  the  primary  fund  fbf 
the  payment  of  legacies,  and  a  testator  is  presumed  to  act  upon  this  legal  doc- 
trine, unless  a  contrary  intent  is  distinctly  manifested  by  the  terms  and  provi- 
sions of  the  will. 

Where  the  personal  estate  is  not  in  terms  exonerated,  and  is  not  specifically  given 
away  by  the  will,  it  will  be  deemed  the  primary  fund  for  the  payment  of  legacies 
notwithstanding  such  legacies,  by  the  terms  of  the  will,  are  expressly  charged 
upon  the  persons  to  whom  the  real  estate  is  devised.  The  charge  upon  the 
devisees  in  such  a  case  will  be  deemed  in  aid,  and  not  in  exoneration  of  the 
primary  fund. 

A  testator  gave  to  his  wife  the  use  of  his  real  and  personal  estate  during  her 
widowhood ;  to  two  of  his  sons  he  devised  the  reversionary  interest  in  his  real 
estate,  and  directed  them  to  pay  legacies  to  his  other  son  and  to  his  daughters ; 
but  made  no  disposition  of  the  reversionary  interest  in  the  personal  estate ; 
held,  that  such  reversionary  interest  in  the  personal  estate  was  the  primary 
fund  for  the  payment  of  the  legacies. 

This  was  an  appeal  by  the  complainants  from  a  decree  of 
the  Chancellor,  reversing  that  of  the  Vice  Chancellor  of  the 
third  Circuit,  and  directing  the  complainants  bill  to  be  dis- 
missed with  costs.  The  facts  are  sufficiently  stated  in  the 
opinion  of  Chief  Justice  Jewett.  (See  also,  1  Barbour,  Ch, 
Rep.  380.) 

H.  Hogeboom,  for  appellants. 
A.  L.  Jordan,  for  respondent. 

JEWETT,  CH.  J.  The  testator,  on  the  17th  day  of  September, 
1817,  duly  made  his  last  will  and  testament,  and  on  the  same 
day  died,  leaving  a  widow  and  six  children.  At  the  time  of 
his  death,  his  property  consisted  of  a  farm  of  about  190  acres, 
worth  about  $9,500,  of  farming  utensils  and  stock  thereon, 
worth  about  §848  06,  of  choses  in  action  and  other  personal 
estate,  worth  about  $5,827  65.  At  the  time  of  his  death, 


NEW-YORK,  NOVEMBER.  1847.  121 

Hoes  and  others  v.  Van  Hoesen. 

his  debts  owing  by  him  amounted  to  about  $144  55,  and  hia 
funeral  charges  to  $59  33. 

To  his  two  sons  John  and  George,  he  devised  and  bequeath- 
ed all  of  his  farm  of  land,  with  all  thereto  belonging,  with 
his  Louse,  barn,  &c.,  their  heirs  and  assigns  forever,  share  and 
share  alike,  with  all  of  his  farming  utensils,  and  also,  all  his 
stock  of  whatever  nature  then  on  his  farm ;  to  his  son  Lam- 
bert he  bequeathed,  three  thousand  dollars,  to  be  paid  within 
one  year  after  his  decease,  by  his  two  sons,  John  and  George ; 
to  each  of  his  three  daughters,  Mary,  (called  Dorothe,)  Anna 
and  Jane,  he  bequeathed  the  sum  of  seven  hundred  dollars, 
also  to  be  paid  by  his  said  two  sons,  John  and  George,  as  th,ey ' 
severally  should  become  of  age. 

To  his  wife  Dorothe,  he  gave  the  use  and  income  of  all  hia 
estate  during  Tier  widowhood.  He  appointed  his  wife  executrix, 
his  son  John  and  his  brother  Geprge  executors,  and  made  no 
other  disposition  of  his  personal  estate. 

The  two  executors  proved  the  will  and  took  out  letters  tes- 
tamentary. The  executrix  did  not  qualify  as  such ;  George, 
one  of  the  executors,  died  in  1822,  leaving  the  son  John  sole 
executor,  who  soon  after  the  testator's  death  made  an  agree- 
ment with  the  widow,  by  which  he  took  the  possession  of  the 
entire  estate  and  used  and  occupied  the  same,  for  his  own 
benefit  and  that  of  his  brother  George,  until  the  year  1825, 
when  he  purchased  his  brother's  interest  in  said  estate. 

The  debts  and  legacies  were  paid  by  John  out  of  the  testa- 
tor's personal  estate.  The  widow  died  in  1834. 

The  complainants  now  claim  an  account  of  the  reversionary 
interest  in  that  part  of  the  personal  estate  not  specifically 
bequeathed  to  the  two  sons  John  and  George,  and  payment  of 
their  shares  therein  as  next  of  kin  of  the  testator. 

This  claim  is  resisted  upon  two  grounds,  first,  on  the  ground, 
that  such  reversionary  interest  was  the  primary  fund  for  the 
payment  of  the  legacies,  after  the  debts  were  paid  and  by 
which  it  was  exhausted.  Second,  on  the  ground  that  Maria  be- 
fore her  marriage  and  Hager  after  his  marriage  with  Anna, 
respectively  released  their  claims  to  the  defendant. 

16 


122  CASES  IN  THE  COURT  OF  APPEALS. 


Hoes  and  others  t>.  Van  Hoesen. 


As  to  the  first  ground :  It  is  a  rule  in  the  construction  of 
wills  that  the  intention  of  the  testator  should  govern  in  all 
cases,  except  where  the  rule  of  law  overrules  the  intention  ; 
and  this  intention,  it  is  well  settled,  must  be  collected  from  the 
whole  of  the  will  or  writing  itself.  (Bradley  vs.  Leppingwell, 
3  Burr.  1541;  Evans  vs.  Astley,  SBurr.  1581.)  The  personal 
estate  of  the  testator  is  deemed  the  natural  and  primary  fund 
to  be  first  applied  in  discharge  of  his  personal  debts  and  gen- 
eral legacies,  (Toller  L.  of  Ex.  417.)  and  the  testator  is  pre- 
sumed to  act  upon  this  legal  doctrine,  until  he  shows  some 
other  distinct  and  unequivocal  intention.  (1  Story's.  Eq.  § 
573.)  It  is  a  rule  also  that,  in  the  event  of  a  deficiency  of 
assets  to  pay  the  debts  of  the  testator,  payable  out  of  the 
personal  assets,  and  discharge  the  specific  and  general  lega- 
cies, the  latter  must  abate  in  proportion  to  the  deficiency,  or 
be  lost  altogether,  unless  the  real  estate  is  charged  with  their 
payment. 

The  old  law  was,  that  the  personal  estate  could  not  be  ex- 
empted from  the  payment  of  debts  and  legacies  without 
express  words ;  but  this  is  now  admitted  not  to  be  necessary ; 
and  it  is  sufficient,  if  there  appears  upon  the  will  an  "  evident 
demonstration,"  a  "plain  intention,"  or  a  "necessary  impli- 
cation." (Gittinsva.  Steek,  ISwanst.  25;  Watsonvs.  Brick- 
wood,  9  Vesey,  Jr.,  447 ;  Booth  vs.  Blundell,  1  Meriv.  192, 
S.  C.  19  Vesey,  Jr.,  517  ;  Rehey  vs.  Deyo,  3  Cow.  133 ; 
Tole  vs.  Hardy,  6  Cow.  333 ;  Glen  vs.  Fisher,  6  John,  Ch.  33 ; 
Livingston  vs.  Neivkirk,  3  John,  Ch.  319.)  What  shall  con- 
stitute proof  of  such  an  intended  exemption  by  the  testator 
is  not  in  many  cases  ascertainable  upon  abstract  principles ; 
but  must  depend  upon  circumstances — and  different  Judges 
have  held  different  opinions.  Lord  Thurlow  thought  it  was  a 
point  so  slender  and  fine  that  he  could  not  collect  any  certainty 
upon  the  question.  (Ancaster  vs.  Mayer,  1  Brown's  Ch.  R. 
462.)  And  Lord  Eldon,  (in  Booth  vs.  Blundell,  Supra.} 
remarks,  "  it  is  scarcely  possible  to  find  any  two  cases,  in  which 
the  Court  altogether  agrees  with  itself ;  there  being  hardly  a 
single  circumstance,  regarded  in  one,  as  a  ground  of  infer- 


NEW-YORK,  NOVEMBER,  1847.  1£3 


Hoes  and  others  v.  Van  Hoesen. 


ence  in  favor  of  the  intention  suggested  as  belonging  to  that 
particular  will,  that  is  not  in  some  others  treated  as  a  ground 
against  that  intention." 

What  then  was  the  intention  of  the  testator,  plainly  collec- 
lected  from  the  whole  will  in  respect  to  the  fund  out  of  which 
the  legacies  were  expected  or  required  to  be  paid?  Was 
it,  that  these  legacies  should  be  paid  by  his  sons,  John  and 
George  personally,  in  consideration  of  the  devise  of  the  real 
estate  and  bequest  of  the  farming  utensils  and  stock  on 
his  farm  in  remainder  after  the  death  or  re-marriage  of  his 
widow  to  them,  in  exoneration  of  the  reversionary  interest  in 
the  personal  estate  undisposed  of  by  his  will  ?  Or  was  it  that 
such  devise  and  bequest  to  the  two  sons  with  directions  to  them 
to  pay,  should  be  in  aid  of  the  reversionary  interest  in  that 
personal  estate,  and  that  that  interest  should  be  the  primary 
fund  for  the  payment  of  the  legacies  ? 

There  is  no  express  charge  of  the  legacies  upon  the  estate 
given  to  John  and  George  in  exoneration  of  the  reversionary 
interest  in  the  personal  estate  not  specifically  bequeathed  ;  nor 
can  any  such  charge  be  implied,  if  the  testator  is  presumed  to 
have  acted  upon  the  doctrine  that  his  personal  estate  was  the 
primary  fund  for  the  payment  of  his  legacies  :  yet  it  is  clear 
that  the  testator  intended  that  the  legacies  should  in  no  event 
fail  or  abate,  and  therefore,  by  his  direction  that  John  and 
George  should  pay  such  legacies,  evidently  in  consideration 
of  his  bounty  to  them,  he  not  only  created  a  charge  upon  them 
personally,  but  in  equity,  a  charge  upon  the  estate  bequeathed 
and  devised  to  them. 

The  mere  making  of  a  provision  for  the  payment  of  debts 
or  legacies  out  of  the  real  estate,  does  not  discharge  the  per- 
sonalty. There  must  be  an  intention  not  only  to  charge  the 
realty,  but  to  exonerate  the  personalty  ;  not  merely  to  supply 
another  fund,  but  to  substitute  that  fund  for  the  property  an- 
tecedently liable.  Thus  in  numerous  cases,  it  has  been  held 
that  neither  a  charge  of  debts  on  the  testator's  lands  gene~ 
rally,  or  on  a  specific  portion  of  them,  nor  a  devise  upon  trust 
for  sale,  however  formally  or  anxiously  framed,  nor  the  crea- 


124  CASES  IN  THE  COURT  OF  APPEALS. 


Hoes  and  others  v.  Van  Hoesen. 


tion  of  a  term  of  years  for  the  purpose  of  such  charge, 
exonerate  the  personalty.  ( White  vs.  White,  1  Vernon  43  ; 
Bridgman  vs.  Dove,  1  Atk.  103  ;  Lord  Inchiquin  vs.  French, 
1  Cox.  1;  Haneox  vs.  Abbey,  11  Fesey,  186;  Tower  VB.  Lord 
Rom,  18  Fea.  132;  Ancaster  vs.  Mayer,  1  Brown,  Oh.  R. 
454,  .Saw.  on  Aasete,  C%.  3,  §  5 ;  2  William  8  Exrs.  2  -Aaw. 
J?d.  1215.) 

Nor  is  it  material  that  the  charge  is  imposed  on  the  devisee 
in  the  terms  of  a  condition,  as  where  real  estate  is  devised  to 
A.  he  paying  the  debts  and  legacies  or  the  like.  (Bridgman 
vs.  Dove,  3  Atk.  203  ;  Mead  vs.  Hide,  2  Vernon,  120  ;  Wat- 
son vs.  Brickwood,  9  Vesey,  Jr.,  447,  Roper  on  Leg.  163.) 

In  all  these  cases,  the  charge  upon  the  realty,  or  the  con- 
dition that  the  devisee  shall  pay  as  directed,  is  deemed  and 
taken  to  have  been  made  in  aid  of  the  primary  fund,  and  not 
in  exoneration  of  it,  unless  there  is  an  absolute  disposition  of 
all  the  personal  estate  of  the  testator ;  in  such  case,  the  in- 
tent of  the  testator  to  charge  the  realty  in  exoneration  of  the 
personalty,  is  sufficiently  manifested.  In  this  case  there  was 
no  disposition  of  the  reversionary  interest  in  more  than  $5,000 
value  of  the  personal  estate. 

I  am  satisfied,  therefore,  upon  this  branch  of  the  defence, 
that  the  Chancellor  came  to  a  correct  conclusion. 

It  is  however  insisted,  that  assuming  that  the  legacies  were 
to  be  paid  out  of  the  reversionary  interest  in  the  personal 
estate  not  bequeathed  to  the  devisees,  the  Chancellor,  instead 
of  dismissing  the  bill,  should  have  directed  an  account  of  this 
property  to  be  taken  to  ascertain  whether  the  debts  and  lega- 
cies would  exhaust  it — in  the  event  that  it  should  beheld  that 
the  releases  were  inoperative  beyond  the  amount  of  the  lega- 
cies of  the  releasors.  If  the  case  was  such  that  it  could  not 
be  seen,  without  a  reference,  that  they  would  exhaust  it,  an 
account  in  the  event  mentioned  should  be  taken.  But  there 
is  no  room  for  any  doubt  upon  that  question.  The  widow 
died  in  June,  1834.  Until  then  she  was  entitled  to  the  use 
and  income  of  the  personal  estate.  The  reversionary  interest 
of  that  portion  not  specifically  bequeathed  to  John  and  George, 


NEW-YORK,  NOVEMBER,  1847.  125 

Schermerhorn  v.  The  Mohawk  Bank. 

amounted  to  $5,827,65.  The  legacy  to  Lambert  alone,  with 
interest  after  the  expiration  of  one  year  from  the  death  of  the 
testator,  to  which  the  defendant  would  be  entitled  to  be  allowed, 
without  any  account  of  the  three  legacies  to  the  daughters,  of 
$2,100  in  the  aggregate,  and  without  the  debts  and  the  in- 
terest on  each  from  the  time  the  same  were  payable,  greatly 
exceeds  the  value  of  that  personal  estate.  There  is  not  the 
least  ground  appearing  in  the  case  rendering  it  proper  or  ne- 
cessary for  such  reference. 

Being  entirely  satisfied  of  the  soundness  of  the  defence  upon 
the  first  ground,  I  do  not  deem  it  necessary  to  examine  the 
other.  I  am  of  opinion  that  the  decree  of  the  Chancellor 
should  be  affirmed. 

Decree  affirmed. 


SCHERMERHORN,  Appellant,  vs.  THE  MOHAWK  BANK  Resp'ts. 

Where  a  bill  was  regularly  taken,  as  confessed  in  the  Court  of  Chancery,  and  the 
Chancellor,  on  motion  before  him,  refused  to  open  the  default,  on  the  ground 
that  the  answer  which  the  defendant  sought  to  put  in  was  not  a  good  defence 
to  the  suit  on  the  merits ;  held,  that  the  decision  of  the  Chancellor  was  not  the 
subject  of  appeal. 

J.  Rlwades  and  S.  W.  Jones,  for  the  respondents,  moved 
to  dismiss  the  appeal.  The  Mohawk  Bank  filed  a  bill  against 
Schermerhorn  and  others  to  set  aside  certain  assignments  as 
being  a  fraud  upon  creditors.  After  the  bill  had  been  taken 
as  confessed,  the  defendant,  Schermerhorn,  moved  to  open  the 
default,  and  for  leave  to  defend.  The  Chancellor  denied  the 
motion ;  and  from  that  order  the  defendant  has  appealed. 
The  case  of  Fort  vs.  Sard,  decided  in  September  last,  is  in 
point  to  show  that  an  appeal  will  not  lie. 

A.  Tdber  and  E.  Sandford,  for  the  appellant,  said  there 
was  a  distinction  between  this  case  and  the  one  cited.  In 
Fort  vs.  Sard,  the  Chancellor  denied  the  motion  to  open  the 


126  CASES  IN  THE  COURT  OF  APPEALS. 


Brady  v.  Donnelly. 


default,  on  the  ground  that  the  defendant  wished  to  set  up  an 
inequitable  defence.  But  it  was  not  so  in  this  case.  And 
this  was  not  a  mere  question  of  practice.  The  Chancellor 
did  not  put  his  decision  on  the  ground  that  the  default  had 
not  been  sufficiently  excused ;  but  he  examined  the  case  on 
the  merits,  and  denied  the  motion  on  the  ground  that  the  facts 
on  which  we  relied  did  not  constitute  a  good  defence.  On 
that  question  we  think  the  Chancellor  erred ;  and  in  such  a 
case  an  appeal  should  be  entertained. 

By  the  Court,  BRONSON,  J.  There  is  no  difference  in  prin- 
ciple between  this  case  and  the  one  cited  at  the  bar.  The 
motion  to  open  a  regular  default  is  always  a  question  of  prac- 
tice, addressed  to  the  discretion  of  the  Court  in  which  the 
Buit  is  pending ;  and  it  is  not,  in  its  nature,  a  proper  matter 
for  review  in  an  Appellate  Court.  This  is  so,  whatever  may 
be  the  ground  on  which  the  motion  was  decided. 

Appeal  dismissed. 


126        BRADY,  Appellant,  vs.  DONNELLY,  Executor,  &c.,  Respondent. 


75  127 


The  defendant  to  a  bill  in  equity,  put  in  a  demurrer  thereto,  which  was  overruled 
by  the  Vice  Chancellor.  On  appeal  to  the  Chancellor,  the  order  was  affirmed. 
The  defendant  then  appealed  to  this  Court,  and  afterwards  answered  the  bill. 
Heltl.  that  by  answering,  the  appeal  was  waived. 

Motion  to  dismiss  appeal.  The  case  was  this  :  The  bill  was 
filed  before  the  Vice  Chancellor  of  the  First  Circuit,  and  the 
defendant  Brady  put  in  a  demurrer  thereto,  which  was  over- 
ruled by  the  Vice  Chancellor,  with  leave  to  file  a  second  de- 
murrer. The  defendant  appealed  to  the  Chancellor,  who,  on 
the  26th  of  May,  1846,  made  an  order  affirming  the  decision 
of  the  Vice  Chancellor,  and  from  that  order  tho  appeal  to  this 
Court  now  in  question  was  taken.  In  pursuance  of  the  leave 
given,  as  above  mentioned,  the  defendant,  before  the  26th  of 
May,  1846,  put  in  a  second  demurrer,  which  was  also  over- 


NEW-YORK,  NOVEMBER,  1847.  127 

Brady  v.  Donnelly. 

ruled  by  the  Vice  Chancellor  in  September,  1846.  From  this 
decision  another  appeal  was  taken  by  the  defendant  to  the 
Chancellor,  but  the  order  so  appealed  from  was  affirmed  by 
default  in  January,  1847.  The  appeal  last  mentioned  not 
being  made  in  such  a  manner  as  to  stay  proceedings,  the  com- 
plainant, on  the  14th  of  December,  1846,  had  an  order  en- 
tered taking  the  bill  as  confessed.  This  order  was  opened  by 
consent,  and  the  defendant,  in  the  same  month  of  December, 
put  in  his  answer  fully  denying  the  equity  of  the  bill.  A  re- 
plication thereto  was  filed,  and  the  cause  proceeded  upon  the 
merits  under  the  issue  so  joined.  It  appeared  that  after  the 
answer  was  put  in,  the  above  appeal  to  this  Court  was  noticed 
on  both  sides  for  hearing  at  two  or  more  successive  terms  of 
the  Court.  The  solicitor  for  the  respondent,  in  his  affidavit 
for  the  motion,  stated,  that  until  within  a  week  he  had  not 
been  advised  of  the  impropriety  of  prosecuting  the  appeal 
after  the  defendant  had  answered  the  bill  as  aforesaid. 

Charles  O'Connor,  for  the  respondent,  insisted  that  by 
answering  the  bill  the  defendant  had  waived  his  appeal. 

J.  T.  Brady,  for  the  appellant. 

After  advisement,  the  Court  (JONES  and  GRAY,  Js.,  dissent- 
ing) held  that  the  appeal  was  waived,  and  ordered  the  same  to 
be  dismissed. 


CASES 

ARGUED  AND  DETERMINED 


IN  THE 


OF   THE 

STATE  OF  NEW. YORK, 
IN  JANUARY  TERM,  1848 


129 

s      HA  325 

ell  285 

65  305 


DANES  vs.  QUACKENBUSH. 

The  judgment  of  the  Supreme  Court  in  this  case,  determining  that  the  act  to 
extend  the  exemption  of  personal  property  from  sale  under  execution,  passed 
April  11,  1812,  is  unconstitutional  and  void  as  to  debts  contracted  before  its 
passage,  affirmed. 

On  error  from  the  Supreme  Court.  Danks  sued  Quacken- 
bush  in  the  Common  Pleas  of  Onondaga  County,  in  reple- 
vin for  taking  a  horse  and  harness.  The  case  was  this : 

In  January,  1837,  one  Fitch  recovered  judgment  against 
Danks  in  the  Supreme  Court,  in  an  action  upon  contract,  for 
$83  85.  In  January,  1843,  an  alias  fieri  facias  was  issued 
on  the  judgment,  and  delivered  to  Quackenbush,  who  was 
a  Deputy  Sheriff,  and  who  took  the  property  in  question  by 
virtue  of  the  execution ;  and  for  that  taking  the  suit  was 
brought.  On  the  trial  Danks  claimed  that  the  property  was 
exempt  from  execution  .by  the  act  of  1842,  which  enacts  that, 
"in  addition  to  the  articles  now  exempt  by  law  from  distress  for 
rent  or  levy  and  sale  under  execution,  there  shall  be  exempted 
from  such  distress  and  levy  and  sale,  necessary  household 
furniture,  and  working  tools,  and  team  owned  by  any  person 
being  a  householder,  or  having  a  family  for  whom  he  provides, 


130  CASES  IN  THE  COURT  OF  APPEALS. 


Danks  v.  Quackenbush. 


to  the  value  of  not  exceeding  one  hundred  and  fifty  dollars." 
(Laws  of  1842,  p.  193.)  The  necessary  facts  were  shewn  on 
the  trial  to  bring  the  property  in  question  within  the  exemp- 
tion declared  by  this  statute,  provided  the  statute  was  to  be  so 
construed  as  to  apply  to  debts  contracted  before  its  passage, 
and  if  such  was  the  construction,  then  provided  it  was  a  con- 
stitutional and  valid  statute  as  to  debts  of  that  description. 
The  defendant  insisted  that  it  did  not  apply  to  pre-existing 
contracts,  and  if  it  did,  that  it  was  so  far  unconstitutional  and 
void.  The  Court  charged  the  jury  that  the  property  was  ex- 
empt, and  the  jury  accordingly  found  a  verdict  for  the  plain- 
tiff, on  which  judgment  was  rendered  in  his  favor  in  the 
Common  Pleas.  Quackenbush  having  made  a  bill  of  excep- 
tion embracing  the  above  questions,  removed  the  judgment 
by  writ  of  error  into  the  Supreme  Court,  where  the  the  judg- 
ment was  reversed  upon  the  ground  that  the  act  in  question 
was  unconstitutional  and  void  as  to  antecedent  contracts. 
(See  1  Denio,  128,  where  the  opinion  of  the  Supreme  Court  is 
given  at  length.} 

A  record  of  reversal  being  made  up,  Danks  now  brings 
error  to  this  Court. 

A.  Taber,  for  plaintiff  in  error. 

I.  The  statute  in  question  makes  no  exception  of  executions 
for  debts  which  had  been  previously  contracted,  and  was  evi- 
dently intended  by  the  Legislature  to  apply  to  all  executions 
levied  after  it  went  into  effect.  (Sackett  vs.  Andross  5  Hill.  334.) 

II.  Before  the  Court  will  declare  an  Act  of  the  Legislature 
unconstitutional,  a  case  must  be  presented  in  which  there  is 
no   rational  doubt.     (Dartmouth   College  vs.    Woodward,  4 
Wlieatoris  Rep.,  625  ;  Exparte,  MeCollum,  I  Cow.  Rep.  550.) 

III.  The  statute  in  question  is  not  a  "Law  impairing  the 
obligation  of  contracts,"  within  the  meaning  of  the  Constitu- 
tion of  the  United  States.     (Bronson  vs.  Kinzie,    I  Howard 


ALBANY,  JANUARY,  1848. 


Danks  v.  Quackenbush. 


311  ;  McOracken  vs.  Hay  ward,  2  Do.  608  ;  Sturges  vs.  Crown*- 
ing  shield,  4  Wheat,  122.) 

Cf-eo.  F.  Comstock,  for  defendant  in  error. 

I.  The  Act  of  1842,  extending  the  exemption  of  property 
from  execution,  cannot,  consistently  with  settled  rules,  be  so 
construed  and   applied  as  to  affect   pre-existing  contracts. 
(G-illmore  vs.  Shuter,  1  Freeman  466.  S.  C.  2  Mod.  310; 
Couch  vs.  Jeffries,  4  Burr.  2460;  6  Bac.  Abr.  370  ;  2  Aik. 
36  ;  1  Vesey,  Sen.  225  ;  2  Ld.  Raymond  1350  ;   Osborn  vs. 
Huger,  1  -#«#  .Sep.   179  ;   Sam.  vs.  Claws,  ib.  93  ; 

vs.    Fan  Kleeek,  7  Johns  477;  Sackett  vs.  .Awdross,  5 
334,  7  and  362,  5.) 

II.  The  Act  in  question  under  a  retrospective  construction, 
is  in  violation  of  that  provision  of  the  Constitution  of  the 
United  States  which  prohibits  the  State  Legislatures  from 
passing  laws  impairing  the  obligation  of    contracts  and  is 
therefore  void.     (Sturges  vs.  Or  owning  shield,  4  WJieat.  122  ; 
Green  vs.  Biddle,  8  do.   1  ;    Mason  vs.  Haille,  12  do.   370, 
318,  337  ;  Bronson  vs.  Kinzie,  1  Howard  311;  MeCracken 
vs.  Hayward,  2  do.  608  ;  1  Car.  Law  Repos.  385  ;  2  do.  428  ; 
7  -3fowr.  11  ;  do.  544  ;  do.  588  ;  4  iitf.  34  ;  do.  53  ;  5  Monr.  98.) 

After  advisement,  JEWETT,  CH.  J.  and  BRONSON,  RUGGLES 
and  GRAY,  Js.,  were  for  affirming  the  judgment  of  the  Su- 
preme Court,  upon  the  ground  stated  in  the  opinion  of  that 
Court. 

GARDINER,  J.  (dissenting).  The  decision  of  the  Supreme 
Court  will  be  affirmed,  (upon  an  equal  division  of  the  members 
of  this  Court)  as  I  understand,  upon  the  ground  exclusively, 
that  the  exemption  act  of  1842,  under  a  retrospective  con- 
struction, is  in  violation  of  that  provision  of  the  Constitution 
of  the  United  States,  which  prohibits  the  States  from  passing 
any  law  impairing  the  obligation  of  contracts. 

The  law  in  question  is  as  follows  :  "In  addition  to  the  ar« 
tides  now  exempt,  there  shall  be  exempted  from  distress  and 


132  CASES  IN  THE  COURT  OF  APPEALS 

Danks  v.  Quackenbush. 

levy  and  sale,  necessary  household  furniture,  and  working 
tools,  and  team  owned  by  any  person  being  a  householder,  or 
having  a  family  for  which  he  provides,  to  the  value  of  not  ex- 
ceeding one  hundred  and  fifty  dollars  ;  provided  that  such 
exemption  shall  not  extend  to  any  execution  issued  on  any 
demand  for  the  purchase  money  of  such  furniture,  or  tools,  or 
team,  or  articles  enumerated  by  law." 

The  jury  have  found  that  the  property  levied  upon  was  ne- 
cessary for  the  support  of  the  plaintiff's  family,  and  exempt 
from  execution,  if  the  statute  is  obligatory  upon  the  defendant. 

This  is  the  only  question  I  shall  consider.  The  principle 
involved  is  both  delicate  and  important.  It  has  received  the 
deliberate  attention  of  the  Supreme  Court  who  have  vindi- 
cated their  judgment  in  an  opinion  of  unusual  ability ;  and  it 
would  seem  to  be  required  of  those  who  cannot  acquiesce  in  a 
decision  which  will  be  adopted  by  this  Court,  to  state  the 
grounds  of  their  dissent. 

According  to  the  decisions  of  the  Supreme  Court  of  the 
United  States,  the  several  States  may  impair  the  obligation 
of  contracts,  First,  by  laws  which  annul,  modify,  or  alter 
the  contract  itself.  (Story  Comm.  §  1379  Ogden  vs.  Saun- 
ders  12  Wheat.  284;  4  Wheat.  197-8.)  Secondly,  by  those 
which  change  the  effect  given  by  the  existing  law  to  the  terms 
of  the  contract,  which  by  some  Judges  is  denominated  the  law 
of  the  contract.  (Story  Comm,  §  1378  page  249  ;  4  Wheat. 
341-2  ;  1st  Howard  375  ;  1  Hoivard  319.)  An  example  of 
this  kind  will  be  found  in  Kinzie  vs.  Bronson,  and  would  be 
furnished  in  this  State,  by  a  mortgage  of  real  property,  which 
should  contain  only  a  description  of  the  premises,  the  sum 
secured,  time  of  payment,  and  names  of  the  parties.  It  is 
obvious  that  in  the  instance  supposed  the  right  and  interest 
of  the  mortgagor  and  mortgagee  in  the  premises,  would  have 
to  be  gathered  from  the  existing  law,  in  reference  to  which 
this  contract  was  made,  and  which  in  these  respects,  it  would 
tacitly  adopt.  Bills  of  exchange,  furnish  another  example. 
Although  the  day  of  payment  may  be  fixed  by  the  instrument, 


ALBANY,  JANUARY,  1848.  133 

Danks  v.  Quackenbush. 

the  payee  is  entitled  to  the  days  of  grace  allowed,  which  thus 
becomes  the  law  of  the  contract. 

The  law  of  the  contract,  must  not  be  confounded  with  the 
remedy  to  enforce  it.  The  first,  says  Judge  Washington  in 
Ogden  vs.  Saunders,  "  remains  the  same  every  where  and  will 
"  be  the  same  in  every  tribunal.  But  the  remedy  necessarily 
"  varies  ;  and  with  it  the  effect  of  the  constitutional  pledge, 
"which  can  only  have  relation  to  the  laws  of  each  State 
"  severally." 

Indeed,  the  distinction  betweeen  the  contract,  and  the  law 
of  the  contract  is  rather  formal  than  substantial.  The  first, 
according  to  the  spirit  of  the  authorities,  applies  where  the 
parties  have  defined  their  obligations  and  duties  in  express 
terms.  The  second,  to  those  cases  where  the  agreement  is 
incomplete,  and  frequently  unintelligible  in  these  respects 
without  the  aid  of  the  law,  which  in  the  language  of  Judge 
Story,  "performs  the  office  only  of  expressing  what  is  tacitly 
admitted  by  the  parties  to  be  a  part  of  their  intention."  (8tory 
Com.  Chap.  34,  §  1378.) 

In  the  third  place,  the  obligation  of  a  contract  may  be  im- 
paired by  a  law  "  denying  a  remedy  altogether,  or  may  be 
"  seriously  impaired  by  burdening  the  proceedings  with  new 
"  conditions  and  restrictions,  so  as  to  make  the  remedy  hardly 
"  worth  pursuing."  This  is  somewhat  indefinite  ;  but  it  is  the 
language  of  Chief  Justice  Taney,  and  as  precise  probably  as 
the  nature  of  the  subject  will  permit. 

These  are  the  only  modes  in  which,  the  obligations  of  a 
contract  can  be  assailed  by  State  legislation.  The  law  must 
act  upon  the  contract,  or  upon  the  remedy. 

There  is,  however,  a  broad  and  well  defined  distinction, 
between  the  authority  of  the  State  in  the  two  cases.  A  State 
can  pass  no  law  the  effect  of  which  will  be  to  vary  the  con- 
tract. No  benefit  to  the  people,  no  supposed  advantage  to 
the  parties  will  authorize  it.  The  manner  and  degree  in 
which  the  change  is  effected,  can  in  no  respect '  influence  the 
conclusion.  (Story  Com.  3  Vol.  §1379.)  The  power  is  want- 


384  CASES  IN  THE  COURT  OF  APPEALS. 

Danks  v.  Quackenbush. 

ing,  for  the  prohibition  of  the  constitution  is  absolute  and 
universal. 

It  is  just  as  firmly  settled  by  authority,  that  the  states  re- 
tain their  power  over  the  remedy ;  they  may  change  or  modify 
that  at  pleasure.  "No  one,"  says  Judge  Story,  "will  doubt 
"  that  the  Legislature  may  vary  the  nature  and  extent  of  reme- 
"  dies,  so  always  that  some  substantial  remedy  exists."  (Story 
Com.  §1379.)  In  Kinzie  vs.  Bronson,  (3  Howard  315,)  the 
Court  remark,  "that  undoubtedly  a  State  may  regulate  at 
"pleasure  the  mode  of  proceeding  in  its  Courts,  in  relation  to 
"  past  contracts  as  well  as  future.  And  although  a  new  reme- 
"  dy  may  be  deemed  less  convenient,  and  render  the  recovery 
"  of  debts  more  tardy  and  difficult,  yet  it  does  not  follow  that 
"  the  law  is  unconstitutional.  Whatever  belongs  to  the  reme- 
"  dy  may  be  altered  according  to  the  will  of  the  State,  pro- 
"  vided  the  alteration  does  not  impair  the  obligation  of  the 
"  contract."  And  what  the  legislation  must  be  to  procure 
this  result,  he  has  told  us  in  the  language  I  have  already 
quoted. 

In  McCracken  vs.  Hayward,  Judge  Baldwin  remarks,  that 
it  must  not  be  understood  by  that  or  any  other  decision  of  the 
Court,  that  all  State  legislation  upon  existing  contracts  is  re- 
pugnant to  the  constitution.  And  he  instances  the  recording 
acts,  by  which  an  elder  is  postponed  to  a  younger  grantee, 
the  statute  of  limitations,  and  he  might  have  added,  the  laws 
abolishing  imprisonment  for  debt,  a  remedy  coeval  with,  and 
the  most  stringent  known  to,  the  common  law.  Sufficient  has 
been  said  upon  this  distinction  between  the  contract  and  the 
remedy,  a  distinction  which,  according  to  Judge  Marshall, 
(Sturyes  vs.  Crowning  shield,  4  Wheat.  200,)  exists  in  the 
nature  of  things,  and  is  recognized  in  every  decision  in  the 
United  States  Courts  upon  this  clause  in  the  constitution. 

In  tho  light  of  these  principles,  I  proceed  to  examine  the 
law  of  the  State  of  New  York. 

And  in  the  first  place,  it  is  not  repugnant  to  the  constitu- 
tion because  it  changes  or  acts  upon  the  contract  between 
tho  parties  ;  or  the  law  of  the  contract.  It  does  not  inter- 


ALBANY,  JANUARY,  1848.  136 

Banks  v.  Quackenbush. 

fere  with  the  terms  of  their  agreement,  whatever  they  might 
be,  or  the  effect  which  the  law  existing  at  the  time  when  it 
was  made  gave  to  them. 

Indeed,  a  conclusive  answer  to  any  such  pretence  is,  that 
we  know  nothing  of  the  terms  of  this  contract.  The  record 
states  that  the  judgment  was  rendered  upon  a  contract.  Of 
its  provisions,  whether  it  was  made  here,  or  in  a  foreign  coun- 
try, we  have  no  information  whatever. 

We  know  indeed  that  the  judgment  record  was  before  the 
Court ;  that  the  Judge  was  required  to  charge  that  the  law 
was  unconstitutional,  and  refused.  We  might  perhaps  in- 
dulge a  presumption  in  order  to  sustain  the  decision,  we  can- 
not infer  any  fact  not  stated,  in  order  to  reverse  it. 

I  assume  it  therefore  as  unquestionable,  that  if  the  law  of 
this  State  is  obnoxious  to  the  constitutional  objection,  it  is 
because  it  impairs  the  obligation  of  the  contract  by  striking  at 
the  remedy.  "  That  it  presents  a  case  within  the  undoubted 
"  power  of  State  legislation,  but  that  its  provisions  are  so  un- 
"  reasonable  as  to  amount  to  the  denial  of  a  right,  and  to  call 
"  for  the  interposition  of  the  Court."  (Baldwin  J.  2  Howard 
613.)  So  that  we  can  say  with  C.  J.  Taney,  (1  Howard  317) 
that  "  it  has  burdened  the  remedy  with  new  conditions  and  re- 
strictions, so  as  to  render  it  hardly  worth  pursuing."  Or  Avith 
Justice  Story,  "  that  it  leaves  to  creditors  no  substantial 
remedy  whatever."  In  short  the  enquiry  is  not  as  to  the  ex- 
istence, but  the  abuse  of  legislative  power. 

If  this  view  of  the  question  is  correct,  it  is  believed  that  the 
decision  of  the  Supreme  Court  ought  not  to  be  sustained.  No 
reliance  is  placed  by  that  Court  upon  the  fact  that  the  plain- 
tiff's judgment  was  recovered  prior  to  the  Law  of  1842.  Nor 
is  the  circumstance  of  any  importance ;  since  it  has  always 
been  held,  that  the  obligation  to  perform  a  contract  is  coeval 
with  the  undertaking  to  perform  it.  It  originates  with  the 
contract  itself :  operates  anterior  to  the  time  of  performance. 
(Story  Com.  §1379.)  "The  remedy,  however,"  says  the 
game  author,  "  acts  upon  the  broken  contract,  and  enforces  a 
pre-existing  obligation."  (12  Wheat.  349-50.) 


136  CASES  IN  THE  COURT  OF  APPEALS. 

Danks  v.  Quackenbush. 

The  judgment  of  the  Supreme  Court  is  placed  upon  the 
broad  ground,  that  "such  property  as  was  subject  to  execu- 
tion when  the  debt  was  contracted,  must  remain  subject  to  the 
execution  until  the  debt  is  paid. 

This  decision  therefore,  as  to  the  past  contracts  in  fact 
annihilates  the  distinction  between  the  contract  and  the  re- 
medy, and  applies  to  the  latter  the  stringent  rules  which  the 
United  States  Courts  have  confined  to  the  former.  By  this 
law,  one  hundred  and  fifty  dollars  of  property  under  certain 
circumstances,  is  withdrawn  from  execution,  but  if  the  family 
bible  had  been  for  the  first  time  exempted,  the  decision  would 
have  been  the  same.  No  degrees  are  tolerated.  The  ques- 
tion is  not  whether  the  power  of  the  State  has  been  discreetly 
exercised.  The  authority  to  legislate  at  all  is  denied,  and  in 
truth  the  decision  must  be  sustained  upon  this  ground. 

It  is  believed  that  no  Court  would  assume  the  responsibility 
of  declaring,  that  in  a  community  where  almost  every  house- 
holder sustains  the  double  relation  of  debtor  and  creditor,  a 
statute  which  should  withdraw  from  the  mass  of  six  or  seven 
hundred  millions  of  property,  the  amount  limited  by  this  law, 
for  the  purposes  therein  specified,  was  either  impolitic  or  un- 
just towards  creditors  as  a  class,  their  interest  being  alone 
regarded.  An  individual  deriving  any  benefit  from  this  law 
would  generally  be  indebted  to  more  than  one  creditor.  And 
if  the  question  was  submitted  to  them  collectively,  whether 
one  of  their  number  should  be  paid,  by  a  sale  of  the  imple- 
ments by  means  of  which  the  debtor  was  enabled  to  support 
himself  and  family,  or  whether  they  should  all  rely  upon  his 
future  earnings  for  the  satisfaction  of  their  debts,  they,  as 
reasonable  men,  would  be  likely  to  determine  it  in  the  spirit  of 
this  law.  Regulations  of  this  description,  says  C.  J.  Taney, 
have  always  been  considered  in  every  civilized  community 
as  properly  belonging  to  the  remedy,  to  be  exercised  or  not 
by  every  sovereignty  according  to  its  own  views  of  policy  and 
humanity. 

It  seems  to  have  been  overlooked,  that  this  law  in  its  re- 
trospective operation  affects  the  interest  of  debtors  as  well  as 


ALBANY,  JANUARY,  1848.  137 


Banks  v.  Quackenbush. 


creditors  ;  and  is  in  fact  a  modified  repeal  of  all  the  former 
exemption  acts.  And  according  to  the  decision  of  the  Su- 
preme Court  in  Mathewson  vs.  Weller,  (3  Denio  52.)  all  the 
property  of  the  debtor,  is  now  liable  to  be  sold  upon  an  exe- 
cution, upon  a  judgment  for  the  purchase  money  of  any  article 
exempted  by  former  laws,  as  well  as  the  statute  in  question. 

According  to  this  decision,  it  would  be  difficult  to  deter- 
mine whether  in  1842  the  amount  of  property  absolutely 
withdrawn  from  execution  was  increased  or  diminished. 

It  may  be  the  decisions  in  Mathewson  vs.  Weller,  and  in 
the  present  case  are  consistent  with  each  other.  But  it  seems 
to  me,  that  unless  these  constructive  obligations  are  implied 
only  in  behalf  of  the  creditor,  and  if  the  principle  be  sound, 
that  property  not  exempt  at  the  making  of  the  contract,  must 
remain  liable  until  it  is  satisfied,  the  converse  of  the  proposi- 
tion, that  property  then  exempt  should  remain  so  would  also 
be  true. 

It  is  obvious  that  the  effect  of  the  two  decisions  is,  to  strip 
the  debtor  of  an  old  privilege,  in  place  of  conferring  a  new 
one  upon  him. 

I  have  abstained  from  adverting  to  the  higher  considera- 
tions which  may  be  presumed  to  have  had  their  influence  with 
the  Legislature  in  procuring  the  enactment  of  the  statute. 

The  interest  for  example,  which  every  well  regulated  State 
has  in  the  malntainance  of  the  family ;  in  the  education  of 
those  who  are  to  succeed  to  the  rights  and  duties  of  citizens  ; 
and  in  preserving  the  means  for  maintaining  the  decencies  of 
life,  which  are  so  intimately  associated  with  the  moral  and  re- 
ligious culture  of  a  people.  Such  motives  it  is  granted  can- 
not confer  authority,  however  important  in  determining  its 
fair  and  legitimate  exercise.  But  looking  to  the  effect  of  this 
law  upon  creditors,  enlarging  their  privileges  in  some  respects 
and  restricting  them  in  others,  leaving  as  it  does  unimpaired 
all  existing  remedies  in  their  favor,  many  of  which  are  in  ad- 
dition to  those  of  the  common  law,  and  far  more  searching 
and  efficacious,  and  it  cannot  be  said  that  it  leaves  to  them 
no  substantial  remedy.  Still  less  in  the  language  of  C.  J. 

18 


188  CASES  IN  THE  COURT  OF  APPEALS. 


Dunks  v.  Quackenbush. 


Taney,  are  the  restrictions  of  such  a  character  as  to  make 
the  remedy  hardly  worth  pursuing. 

I  allude  of  course  to  the  effect  of  the  law  as  a  whole,  not  to 
its  operation  in  especial  cases.  It  is  said  that  in  this  case  it 
saves  all  to  the  debtor,  and  it  might  have  been  added,  that  it 
is  equally  obvious  that  the  debtor  acquired  all  that  was  saved, 
after  the  return  of  the  first  execution  upon  this  judgment, 
and  for  ought  we  know,  of  a  vendor  who  may  have  parted 
with  his  property  upon  the  security  afforded  by  the  act. 
These  creditors  may  not  gain,  but  they  certainly  lose  nothing 
by  the  law.  But  if  it  were  otherwise,  it  would  make  no  dif- 
ference. Every  law  acting  upon  the  remedy  will  be  produc- 
tive of  some  evil.  The  objection  is  not  so  much  to  this  law, 
as  to  any  legislation  whatever. 

The  Supreme  Court,  as  I  understand  them,  do  not  deny 
that  this  act  relates  to  the  remedy,  but  that  the  remedy  is 
one  over  which  the  State  has  no  power  in  reference  to  past 
contracts.  We  are  told  "  that  there  is  no  well  defined  mid- 
dle ground,  between  holding  that  none,  or  admitting  that  all 
a  debtor's  property  may  by  a  subsequent  law  be  exempt  from 
execution." 

This  argument  proves  too  much,  for  it  applies  to  all  retro- 
spective legislation  which  may  by  possibility  operate  upon  the 
contract  through  the  remedy.  The  instance  of  a  law  regulat- 
ing the  practice  of  the  Courts  is  not  an  exception.  Such  a 
law,  may  direct  all  actions  upon  contract  to  be  commenced 
by  capias  to  be  returned  within  sixty  days  after  the  time  of 
service,  or  any  shorter  period,  and  be  valid ;  but  if  it  pre- 
scribed ten  years  it  would  be  held  unconstitutional.  '  But  in 
cither  case,  the  law  would  be  obnoxious  to  the  objection,  that 
if  a  State  could  prescribe  sixty  days,  it  might  ten  years  or  a 
longer  period,  and  thus  impair  the  obligation  of  the  contract 
through  the  remedy.  There  is  no  well  defined  middle  ground 
in  either  case.  The  same  may  be  said  of  statutes  of  limita- 
tions, recording  acts,  acts  abolishing  impoisonment  for  debt, 
and  those  giving  time  to  executors,  &c.,  before  suit.  The 
answer  to  all  such  objections  is  to  be  found  in  the  established 


ALBANY,  JANUARY,  1848.  139 


Danks  v.  Quackenbush, 


distinction,  between  the  power  of  the  states  over  the  contract, 
and  over  the  remedy,  between  the  exercise  of  a  power  denied 
to  them  by  the  constitution,  and  the  wrongful  exercise  of  one 
which  they  unquestionably  possess.  The  States  may  legislate 
upon  all  remedies  ;  they  must  do  it,  for  they  have  the  exclu- 
sive power  so  far  as  they  relate  to  their  own  Courts,  but  they 
may  not  abuse  that  power,  in  reference  to  any  remedy,  so  far 
as  to  destroy  the  beneficial  effects  of  the  contract.  They 
may  therefore  exempt  the  bed  of  the  debtor,  but  it  does  not 
follow  that  they  may  a  farm  worth  $20,000.  The  first  would 
be  a  fair  exercise  of  authority,  the  last  an  abuse  of  it.  If 
between  these  extremes,  there  is  no  well  defined  middle 
ground,  it  is  because  our  National  Court  has  claimed  the  right 
to  supervise  State  legislation  upon  the  subject,  not  merely  by 
entertaining  the  question,  whether  any  remedy  was  afforded, 
but  whether  a  substantial  one  was  provided  for  the  creditor- 
What  is  their  right  and  duty  is  ours,  and  that  of  every  other 
Court  from  the  lowest  to  the  highest. 

We  must  enter  this  terra  incognita,  explore  it  by  the  aid  of 
those  lights  which  experience  and  the  knowledge  of  the  state 
of  society  among  us  will  afford,  and  determine  for  ourselves 
primarily,  whether  the  particular  law  transcends  the  limits  of 
fair  legislation,  and  is  in  effect,  whatever  may  have  been  the 
motives  of  its  framers,  a  fraud  upon  the  constitution.  We 
ought  not  to  purchase  judicial  certainty,  by  an  unqualified 
surrender  of  State  power. 

It  is  however  insisted,  that  the  question  is  virtually  deci- 
ded by  the  cases  of  Bronson  vs.  Kinzie,  (1  How.  311,)  and 
McCrackenvs.Hayward,  (2  Id.  608.)  The  first  was  the  case 
of  a  mortgage  executed  by  Kinzie  to  .Bronson,  in  which  among 
other  things,  the  former  covenants,  that  if  default  should  be 
made  in  the  payment  of  the  principal  sum  and  interest  secured, 
it  should  be  lawful  for  Bronson  to  enter  upon  and  sell  the 
mortgaged  premises  at  auction,  and  as  attorney  for  Kinzie 
convey  the  same  to  a  purchaser,  and  out  of  the  monies  retain, 
the  amount  due  him,  &c.  Subsequent  to  the  execution  of  the 
mortgage,  the  State  of  Illinois  passed  a  law,  in  substance  pro- 


140  CASES  IN  THE  COURT  OF  APPEALS. 


Danks  v.  Quackenbush. 


viding,  that  the  mortgaged  premises  should  not  be  sold  except 
at  a  sum  equal  to  two  thirds  of  their  appraised  value,  and 
when  sold,  that  the  mortgagor  should  have  twelve  months  with- 
in which  to  redeem  ;  and  in  his  default,  his  judgment  credi- 
tors might  redeem  in  three  months  thereafter.  The  law  was 
held  to  be  unconstitutional,  upon  the  ground  that  it  deprived 
the  mortgagee  of  the  right  to  sell  the  whole  premises,  which 
•was  given  by  the  express  terms  of  the  mortgage,  and  second, 
because  it  created  after  sale,  a  new  estate  to  his  prejudice  in 
favor  of  the  mortgagor  and  judgment  creditors.  There  was 
therefore  a  double  violation  of  the  contract  itself.  The  case 
has  therefore  no  application  to  the  present ;  and  as  if  for  the 
purpose  of  excluding  any  such  inference,  the  Chief  Justice  in 
his  opinion  remarks  :  "  That  if  that  law  had  done  nothing 
more  than  change  the  remedy  upon  contracts  of  that  descrip- 
tion, it  would  have  been  liable  to  no  constitutional  objection. 
For  undoubtedly,  a  State  may  regulate  at  pleasure  the  modes 
of  proceeding  in  its  Courts,  in  reference  to  past  as  well  as 
future  contracts."  He  then  instances  the  statute  of  limita- 
tions, and  adds  :  "that  it  (a  State)  may  if  it  thinks  proper, 
direct  that  the  necessary  implements  of  agriculture,  the  tools 
of  a  mechanic,  and  articles  of  necessity  in  household  furniture, 
shall,  like  wearing  apparel,  not  be  liable  to  execution  on  judg- 
ments." 

We  could  almost  imagine  that  the  learned  judge  had  our 
statute  before  him,  while  preparing  his  opinion. 

The  case  of  McCracken  vs.  Hayward,  arose  under  the  same 
law  which  was  passed  in  February,  1841,  and  under  a  section, 
"  that  when  any  execution  should  be  levied  on  real  or  personal 
property,  or  both,  the  property  should  be  valued  according 
to  its  cash  value,  by  three  householders  on  oath,  one  to  be 
chosen  by  each  of  the  parties,  the  other  by  the  Sheriff,  who 
must  agree  in  their  valuation,  which  was  to  be  endorsed  on 
the  execution ;  and  when  such  property  should  be  offered  for 
sale,  if  capable  of  division,  no  greater  quantity  should  be  of- 
fered, or  sold,  than  would  be  sufficient  to  pay  the  amount  of 
the  execution,  at  two-thirds  of  the  valuation  thereof,  reserv 


ALBANY,  JANUARY,  1848.  141 


Danks  v.  Quackenbush. 


ing  to  the  defendant,  in  all  cases,  the  amount  and  quantity 
of  property  then  exempt  from  execution  by  the  laws  of  the 
State." 

The  property  of  the  defendant  was  offered  for  sale  by  the 
marshall,  but  was  not  sold,  as  no  one  bid  two-thirds  of  its 
value.  The  plaintiff  sued  out  a  new  execution,  and  applied 
to  the  Court  for  an  order  to  sell,  regardless  of  the  State  law. 

The  question  of  the  constitutionality  of  the  law  did  not 
necessarily  arise,  as  the  Circuit  Court  Lad  not  adopted  the 
law  of  Illinois,  which  was  necessary  in  order  to  effect  process 
of  execution  from  that  Court.  The  plaintiff  was  therefore 
entitled  to  the  order  asked  for,  and  a  sale  under  the  former 
law,  which  was  the  law  of  the  Court.  But  the  question  was 
raised,  and  as  I  infer,  decided  that  the  law  was  unconstitu- 
tional. I  acquiesce  in  that  decision.  It  remains  to  be  seen 
whether  it  controls  the  present  case. 

In  the  first  place,  the  act  was  in  effect  wholly  retrospective  ; 
it  was  passed  on  the  27th  of  February,  1841,  and  applied  only 
to  judgments  rendered,  or  judgments  that  might  be  rendered, 
on  any  contract  or  cause  of  action  arising  prior  to  the  first 
of  May  in  the  same  year.  Its  future  operation  was  limited 
to  two  months,  and  the  old  law  afforded  the  remedy  as  to  all 
contracts  made  after  that  period. 

In  the  second  place,  as  we  have  seen,  it  applied  to  a  par- 
ticular class  of  contracts  and  creditors.  The  act  upon  its 
face,  therefore,  furnished  the  strongest  evidence,  that  it  was 
adopted  as  a  mere  stop  law,  intended  to  answer  a  temporary 
purpose,  and  was  not,  in  the  estimation  of  the  Legislature 
who  enacted  it,  in  the  language  of  the  Court,  in  Ogden  vs. 
Saunders,  "  a  full,  fair,  and  candid  exercise  of  State  power, 
to  the  ends  of  justice,  according  to  its  ordinary  administra- 
tion." The  judgment  of  the  plaintiff  was  obtained  in  1840. 
In ,  August,  1842,  when  his  execution  was  levied,  there  was 
one  remedy  for  him,  and  a  more  favorable  one  for  a  citizen, 
who  contracted  with  the  same  debtor,  subsequent  to  May, 
1841,  and  this  in  reference  to  the  same  property. 

Nor  was  this  all.     The  property  must  be  appraised  at  two- 


142  CASES  IN  THE  COURT  OF  APPEALS. 

Banks  v.  Quackenbush. 

thirds  its  value,  by  all  the  appraisers,  of  which  the  debtor 
selected  one.  Of  course  his  valuation  must  be  adopted  or 
none. 

But  supposing  him  not  to  incline  in  favor  of  his  neighbor, 
and  the  property  honestly  appraised  at  two-thirds  of  what 
would  be  deemed  its  value,  if  taken  upon  a  cash  debt.  Who 
that  knows  any  thing  of  forced  sales  of  property,  can  suppose 
that,  as  a  general  rule,  it  would  command  two-thirds  of  the 
real  value.  If  the  debt  is  considerable,  the  number  who  have 
money,  in  an  agricultural  community  especially,  are  very  few, 
and  in  all  cases  the  sale  is  made  without  reference  to  the 
wants  of  the  purchaser.  The  sales  of  securities  under  the 
banking  law  of  this  State,  have  not  averaged  seventy  per 
cent,  of  their  nominal  value,  and  yet  the  mortgages  are  se- 
cured on  lands  valued  by  sworn  appraisers  at  double  the  amount 
secured  by  the  mortgage,  in  addition  to  the  personal  security 
of  the  mortgagor.  What  is  true  with  us,  would  be  so  in  a 
State  possessing  far  less  capital. 

The  plaintiff's  execution,  in  the  case  cited,  was  returned 
unsatisfied,  because  no  one  would  bid  to  the  valuation.  It 
would  be  very  extraordinary  if  it  had  been  otherwise.  A  dif- 
ferent result,  under  such  a  law,  would  have  been  an  exception 
to  a  rule  nearly  universal.  It  furnishes,  in  fact,  an  effectual 
shield  to  the  whole  of  the  debtor's  property.  In  a  word, 
whether  we  consider  the  extraordinary  provisions  of  the  law, 
or  its  inevitable  practical  operation,  as  tested  by  all  experi- 
ence, it  must  be  condemned  as  a  gross  and  flagrant  abuse  of 
legislative  power. 

If  the  law  of  1842  is  obnoxious  to  the  same  objection,  let 
it  receive  the  same  condemnation. 

But  it  is  incumbent  upon  those  who  hold  the  affirmative,  to 
establish  that  the  statute  of  Illinois,  which  legalized  all  prior 
exemption  acts,  and  then  withdrew  the  residue  of  the  debtor's 
property,  including  his  future  acquisitions  from  executions, 
which  was  limited  mostly  to  past  contracts,  and  merely  sus- 
pended the  law  existing  at  its  passage,  for  two  months  after 
that  period,  compelling  creditors  to  pursue  distinct  and  une- 


ALBANY,  JANUARY,  1848.  143 

Danks  v.  Quackenbush. 

qual  remedies,  according  to  the  date  of  their  contracts,  is 
identical  in  principle  with  the  law  of  this  State,  which  deprives 
the  debtor  of  privileges  secured  by  former  laws,  and  then 
(when  fully  paid  for)  exempts  household  furniture,  tools,  &c., 
of  those  having  families  to  support,  to  a  limited  amount,  if 
adjudged  to  be  necessary  by  a  competent  tribunal,  which  sub- 
jects the  future  earnings  of  the  debtor  to  the  claims  of  credi- 
tors, and  compels  him,  by  summary  process  provided  by 
another  law,  to  apply  them  in  discharge  of  those  claims,  and 
which,  above  all,  instead  of  being  partial  and  temporary  in 
its  operation,  was  adopted  as  the  settled  and  permanent  policy 
of  a  great  commercial  State,  in  reference  to  all  contracts,  and 
all  persons  without  distinction. 

Until  this  is  done,  we  may  avail  ourselves  of  the  rule  de- 
clared by  one  of  the  ablest  Judges  that  ever  had  a  seat  in  the 
Court  of  the  United  States,  "  that  the  positive  authority  of  a 
decision  is  co-extensive  only  with  the  facts  upon  which  it  is 
made."  (12  Wheat.  333.) 

JONES,  JOHNSON,  and  WRIGHT,  Js.,  concurred  with  GARDI- 
NER, J. 

Judgment  affirmed. 


144 


CASES  IN  THE  COURT  OF  APPEALS. 


Spear  v.  WardelL 


SPEAR  and  RIPLEY,  Appellants,  vs.  CHARLES  WARDELL  and 
others,  Respondents. 

The  assignment  which  a  debtor  proceeded  against  under  the  non-imprisonment 
act,  executes  pursuant  to  the  provisions  of  that  act,  (Stat.  1831,  §  10, 17)  is  for 
the  benefit  of  the  creditor  who  institutes  the  proceeding,  and  not  of  the  credit- 
ors generally. 

And  a  voluntary  assignment,  executed  by  such  debtor,  while  the  proceeding  is 
pending  against  him,  of  all  his  property  for  the  benefit  of  all  his  creditors 
without  preference,  is  a  fraud  upon  the  act  and  the  rights  of  the  prosecuting 
creditor. 

Where  a  judgment  creditor  instituted  a  regular  and  valid  proceeding  under  the 
non-imprisonment  act,  and  the  debtor,  while  the  proceeding  was  pending,  exe- 
cuted a  voluntary  assignment  of  all  his  property  for  the  benefit  of  his  creditors 
generally  without  preference,  so  that  no  property  passed  into  the  hands  of  the 
statutory  assignee  under  the  statutory  assignment  subsequently  made ;  held, 
upon  a  bill  filed  by  the  creditor  against  the  debtor  and  the  voluntary  assignee, 
that  the  voluntary  assignment  should  bo  allowed  to  stand,  but  the  assignee 
should  be  decreed  to  hold  the  property  assigned,  as  a  trustee  for  such  creditor 
to  the  extent  of  his  demand. 

Held  also,  that  the  title  to  the  property  having  passed  to  the  voluntary  assignee, 
the  statutory  assignee  had  no  interest,  which  made  it  necessary  to  join  him  as  a 
party  to  the  bill. 

Appeal  from  the  Court  of  Chancery.  This  case  was  brought 
to  hearing,  before  the  Chancellor,  upon  the  bill  filed  by  the 
appellants,  and  the  joint  and  several  answers  of  the  respon- 
dents. The  material  facts  were  these :  The  appellants,  on 
the  2d  November,  1846,  recovered  judgment  in  the  Supreme 
Court  against  Charles  Wardell  and  Charles  E.  Wardell,  two 
of  the  defendants,  for  $1,376,97  upon  contract.  The  said 
Charles  Wardell  and  Charles  E.  Wardell  were  partners  in 
trade,  and  the  judgment  was  for  a  partnership  demand.  On 
the  5th  of  November  they  were  possessed  of  notes  and  ac- 
counts to  an  amount  more  than  sufficient  to  pay  the  judgment, 
and  on  that  day  they  were  requested  to  apply  some  of  such 
notes  and  accounts  to  that  purpose.  This  they  refused  to  do 
upon  the  ground  (and  so  were  the  facts,)  that  they  were  in- 
solvent to  a  large  amount,  that  a  committee  of  their  creditors 
had  recommended  that  the  creditors  accept,  as  a  compromise 


ALBANY,  JANUARY,  1848.  145 

Spear  v.  Wardell. 

of  their  claims,  a  per  centage  upon  the  amount  due  them,  and 
in  case  they  did  not  all  agree  to  do  so,  then  that  they  intended 
in  good  faith  to  assign  all  their  property  to  pay  their  debts 
without  preference. 

After  this  refusal,  and  on  the  same  day,  the  complainants 
procured,  from  EDMONDS,  Circuit  Judge,  a  warrant  against 
the  said  Charles  Wardell  and  Charles  E.  Wardell,  and  had 
them  arrested  pursuant  to  the  4th  section  of  the  act  to  abolish 
imprisonment  for  debt  and  to  punish  fraudulent  debtors.  (Laws 
of  1831,  p.  396.)  After  their  arrest,  but  before  the  decision 
of  the  officer,  to  wit :  on  the  21st  day  of  November,  1846, 
they  made  a  voluntary  assignment  of  all  their  estate,  real  and 
personal,  to  Henry  B.  Wardell,  the  other  defendant.  On 
the  28th  of  November,  the  Circuit  Judge  decided  that  the  al- 
legations of  the  complainants  were  substantiated,  and  that  the 
said  Charles  Wardell  and  Charles  E.  Wardell  had  unjustly 
refused  to  apply  their  choses  in  action  to  the  payment  of  the 
judgment.  A  commitment  was  accordingly  ordered  pursuant 
to  the  9th  section  of  the  act ;  to  prevent  which,  they  several- 
ly made  and  delivered  to  the  officer  an  inventory  of  their  re- 
spective estates,  and  an  account  of  their  creditors,  pursuant 
to  the  3d  subdivision  of  the  10th  section  of  the  act.  These 
inventories  contained  none  of  the  choses  in  action  which  had 
belonged  to  them  as  partners,  nor  any  other  partnership  ef- 
fects. Such  further  proceedings  were  had,  that  an  assign- 
ment was  directed  by  the  officer  pursuant  to  the  16th  section, 
which  they  accordingly  made  to  Stephen  P.  Nasli,  who  was 
appointed  assignee  by  the  officer.  On  the  22.d  of  December, 
1846,  they  were  discharged,  according  to  the  17th  section. 
No  property  passed  into  the  hands  of  the  assignee  so  appoint- 
ed, except  $30  in  money,  the  residue  of  their  effects,  except 
such  as  were  by  law  exempt  from  execution,  having  previous- 
ly passed  into  the  hands  of  Henry  B.  Wardell,  under  the 
voluntary  assignment  to  him  above  mentioned.  The  com- 
plainants opposed  the  discharge  of  the  debtors,  on  the  ground 

that  their  proceedings  were  not  just  and  fair,  insisting  that 

19 


146  CASES  IN  THE  COURT  OF  APPEALS. 

Spear  v.  Wardell. 

the  said  voluntary  assignment  was  a  fraud  upon  the  act.  But 
the  objection  was  overruled  by  the  Circuit  Judge. 

After  these  proceedings  were  closed,  the  complainants  ap- 
plied to  Henry  B.  Wardell,  the  voluntary  assignee,  to  have 
their  judgment  paid,  in  preference  to  other  creditors,  out  of 
the  notes  and  accounts  which  went  into  his  hands  under  the 
assignment  to  him.  He  refused  to  make  such  payment,  or 
to  give  any  preference  over  other  creditors.  The  bill  insisted, 
that  by  the  proceedings  under  the  act  aforesaid,  the  complain- 
ants had  acquired  a  lien  upon,  or  right  to  priority  of  pay- 
ment out  of  the  choses  in  action  of  the  said  Charles  Wardell 
and  Charles  E.  Wardell,  that  such  lien  or  right  attached  as 
of  the  time  they  were  arrested,  that  the  voluntary  assignment 
made  to  Henry  B.  Wardell  was  a  fraud  upon  the  act,  and 
therefore  void ;  or  if  not  so,  that  he  took  the  choses  in  action 
assigned  to  him  subject  to  such  lien  or  right.  The  answer 
controverted  these  positions.  The  prayer  of  the  bill  was,  that 
the  assignment  to  Henry  B.  Wardell  might  be  set  aside  as  a 
fraud  upon  the  act  and  upon  the  rights  which  the  complain- 
ants had  acquired  by  their  proceedings ;  or,  if  allowed  to 
stand,  that  the  complainants  might  be  paid  the  amount  of 
their  judgment  out  of  the  choses  in  action  so  assigned,  or  the 
proceeds  thereof,  in  preference  to  other  creditors,  and  for  an 
injunction,  receiver,  &c. 

The  Chancellor  made  a  decree  dismissing  the  bill  with  costs. 

S.  P.  Nash,  for  appellants.  1.  The  creditor  who  has  ob- 
tained the  commitment  of  a  debtor,  under  the  non-imprison- 
ment act,  is  entitled  to  a  preference  over  creditors  at  large  in 
the  distribution  of  the  debtor's  property  under  the  act.  (People 
vs.  Abel,  3  Hill  109  ;  Berthelon  vs.  Setts,  4  Hill  577  ;  Moak 
vs.  De  Forest,  5  JIUIG05  ;  practical  directions  under  the  non- 
imp,  act,  (pamph.}  p.  15.)  2.  It  follows  that  any  voluntary 
disposition  by  the  debtor,  pending  the  proceedings,  in  order 
to  defeat  such  preference,  is  a  fraud  upon  the  statute,  and  a 
Court  of  Equity  has  jurisdiction  to  protect  the  creditor's 
rights,  and  set  aside  the  fraudulent  act.  3.  This  jurisdiction 


ALBANY,  JANUARY,  1848.  147 

Spear  v.  Wardell. 

can  only  be  exercised  on  behalf  of  the  creditor  whose  priority 
has  been  overreached.  He  is  therefore  the  proper  party  com- 
plainant. 4.  The  decree  of  the  Chancellor  should  be  reversed, 
and  the  defendant,  Henry  B.  Wardell,  be  directed  to  pay  the 
complainant's  judgment  with  interest  and  costs. 

J.  tS.  Bosworth,  for  respondents. 

WRIGHT,  J.  The  important  question  in  this  case  is, 
whether  a  voluntary  assignment  of  property  for  the  benefit  of 
creditors  generally,  made  by  a  defendant  after  his  arrest  and 
during  the  pendency  of  proceedings  under  the  act  "to  abolish 
imprisonment  for  debt  and  to  punish  fraudulent  debtors"  is  a 
fraud  upon  such  act,  and  upon  the  rights  of  the  prosecuting 
creditor  thereunder.  An  examination  of  the  objects  and 
aims  of  the  statute  of  1831,  and  its  peculiar,  and,  generally 
admitted,  quite  imperfect  provisions,  is  involved  in  the  inquiry. 
Its  professed  objects  are,  to  abolish  imprisonment  for  debt 
and  to  punish  fraudulent  debtors.  But  it  goes  further  ;  aim- 
ing to  provide  to  the  prosecuting  creditor  of  such  fraudulent 
debtor  a  remedy  for  enforcing  the  payment  of  his  demand. 
Whilst  as  a  civil  remedy  (and  only  as  such  I  shall  consider  it) 
it  takes  from  a  certain  class  of  creditors  the  power  of  coerc- 
ing from  all  debtors  satisfaction  of  their  demands  by  impri- 
sonment, it  gives,  with  a  single  exception,  to  the  creditors  of 
such  class,  who  may  prosecute,  and  who  shall  pursue  its  pro- 
visions, as  against  a  fraudulent  debtor,  a  new  remedy,  which, 
in  its  operation,  continues  the  power  of  coercion  by  imprison- 
ment in  a  severer  form,  unless  the  debt  shall  be  paid,  or  all 
the  debtor's  property,  legal  and  equitable,  be  set  apart,  in  the 
form  prescribed,  for  its  payment.  In  the  exception  alluded 
to,  where  the  particular  fraudulent  design  established  against 
the  debtor  is,  that  he  is  about  to  remove  any  of  his  property 
out  of  the  jurisdiction  of  the  Court  in  which  the  suit  of  the 
prosecuting  creditor  is  brought,  it  continues  such  coercion  by 
imprisonment,  unless  the  debtor  shall,  in  effect,  indemnify  the 
creditor  against  the  commission  (until  the  demand  of  the  pro- 


148  CASES  IN  THE  COURT  OF  APPEALS. 

Spear  v.  WardelL 

secuting  creditor,  with  costs,  shall  be  satisfied,  or  until  the 
expiration  of  three  months  after  a  final  judgment  shall  be 
rendered  in  the  suit  brought  for  the  recovery  of  such  demand) 
of  certain  fraudulent  acts,  tending  to  impair  or  destroy  the 
creditor's  remedy  against  the  property  held  by  the  debtor  at 
the  date  of  such  indemnity.  The  new  remedy  is  not  given  to 
all  who  may  have  demands  against  the  debtor  arising  upon 
contract,  but  only  to  those  who  shall  have  commenced  a  suit 
against  the  debtor,  or  shall  have  obtained  a  judgment  or  de- 
cree against  him  in  a  Court  of  Record  ;  and  considering  that  a 
leading  purpose  of  the  act  was  to  abolish  imprisonment  on 
demands  ex  contractu,  there  was  a  fitness  and  propriety  in 
confining  the  new  remedy  to  the  two  classes  enumerated,  for 
they  were  the  only  persons  who  could  arrest  and  imprison  on 
the  demand  itself,  or  could  bo  immediately  affected  by  the  abo- 
lition of  the  old  remedy.  As  against  the  honest  debtor  the  act 
absolutely  abolishes  imprisonment ;  but  against  the  dishonest 
one,  it'  provides  that  imprisonment,  as  a  remedy  or  means  of 
coercion  shall  still  exist ;  to  be  avoided  by  the  payment  of  the 
debt  or  demand  by  the  debtor,  or  by  his  giving  satisfactory  se- 
curity for  its  payment,  or  by  justly  and  fairly  setting  apart  his 
property,  legal  and  equitable,  for  that  purpose ;  and  in  one  class 
of  frauds,  by  indemnifying  the  prosecuting  creditor  against 
the  commission  of  certain  fraudulent  acts,  whilst  such  credi- 
tor is  prosecuting  his  demands  against  him  to  judgment,  and 
until  three  months  afterwards.  Imprisonment  is  to  follow  the 
fraudulent  debtor's  conviction,  unless  in  the  mode  prescribed, 
the  demand  of  the  prosecuting  creditor  shall  be  paid,  or  pay- 
ment secured,  or  the  debtor's  property  delivered  up  to  satisfy 
such  demand  ;  or  the  debtor  indemnify  the  prosecuting  credi- 
tor against  a  fraudulent  disposition,  within  a  specified  period, 
of  the  property  he  may  then  have.  And  if  such  debtor  be 
committed  to  prison,  he  shall  remain  in  custody  in  the  same 
manner  as  prisoners  on  criminal  process,  "  until  a  final  judg- 
ment shall  have  been  rendered  in  his  favor  in  the  suit  prose- 
cuted by  the  creditor,  at  whose  instance  such  debtor  shall 
have  been  committed,  or  until  he  shall  have  assigned  his  pro- 


ALBANY,  JANUARY,  1848.  149 

Spear  v.  "Wardell. 

perty  and  obtained  his  discharge,"  but  he  may  be  discharge  1 
at  once,  without  assignment  of  his  property,  by  payment  of 
the  debt  or  demand,  or  giving  security  for  the  payment 
thereof.  As  against  a  fraudulent  debtor,  the  provisions  of 
the  act,  are,  in  the  language  of  Justice  Cowen  in  the  case  of 
Bertlielon  vs.  Betts  (4  Hill  577),  "  in  effect,  a  statute  execu- 
tion against  choses  in  action  and  other  effects  not  tangible  by 
the  ordinary  fi.  fa.  The  statute  gives  the  creditor  or  creditors 
certain  process  by  which  he  or  they  may  coerce  the  payment 
of  a  debt  or  debts  for  which  the  debtor  has  been  prosecuted." 

After  a  careful  examination  of  its  provisions,  this  is  the  con- 
struction that  I  place  upon  the  objects  and  intent  of  the  act 
as  a  civil  remedy.  For  if  the  object  be  not  to  coerce  from 
the  fraudulent  debtor  the  payment  of  the  debt  or  demand  of 
the  creditor  or  creditors  who  are  permitted  to  institute  pro- 
ceedings, but,  as  is  contended,  only  an  assignment  of  the 
debtor's  property  for  the  benefit  of  creditors  at  large,  then  is 
it  worthless  as  a  remedial  statute,  and  the  aim  of  the  legisla- 
ture in  providing  a  punishment  for  fraud,  or  a  severer  remedy 
to  coerce  the  payment  of  demands  ex  contractu  against  s 
fraudulent  debtor,  is  entirely  frustrated;  for  what  creditoi 
with  the  object  only  in  view  of  coercing  an  assignment  of  an 
insolvent  or  fraudulent  debtor's  estate,  which  should  enure  to 
the  benefit  of  all  creditors,  would  institute  proceedings  under 
the  act  ?  In  construing  remedial  statutes,  Courts  should  en- 
deavor, in  consistency  with  established  rules  of  construction, 
to  impart  to  them  the  force  and  efficacy  contemplated  by  the 
Legislature. 

I  propose  briefly  to  examine  in  detail  those  sections  of  the 
act  having  a  bearing  on  the  question  involved  in  this  case. 
Such  examination,  unless  I  am  clearly  mistaken,  will  serve  to 
fortify  the  views  I  have  taken  of  the  act  as  a  civil  remedy. 
The  third  section  points  out  only  two  classes  of  persons  that 
may  institute  proceedings ;  and  they,  as  has  been  remarked, 
are  the  only  ones  immediately  affected  by  the  operation  of  the 
first  section.  Unless  a  creditor  falls  within  one  or  the  other 
of  these  classes,  he  cannot  institute  a  prosecution.  There  is 


150  CASES  IN  THE  COURT  OF  APPEALS. 

Spear  v.  Wardell. 

no  provision  for  the  coming  in  of  other  creditors  under  the 
proceedings  instituted  by  either  class,  nor  a  joinder  of  several 
creditors  of  the  specified  classes.  At  the  outset  the  proceed- 
ing is  an  individual  one,  contemplating  an  individual  benefit, 
and  looking  ultimately  to  the  furtherance  of  two  ends,  viz : 
punishment  of  fraud,  and  individual  interest.  The  warrant 
issues  to  arrest  the  defendant  in  the  suit  which  the  prosecuting 
creditor  has  commenced  against  him  in  a  Court  of  Record,  or 
in  which  he  has  obtained  a  judgment  or  decree ;  this  peculiar 
statutory  arrest  being  given,  in  such  suit,  against  a  fraudulent 
debtor,  in  lieu  of  the  remedy  taken  away  of  arrest  in  the  one 
case  on  mesne,  and  in  the  other  on  final  process. 

The  causes  specified  in  the  fourth  section  for  granting  the 
warrant  to  arrest  the  debtors,  are  such  as  may  apply  to  indi- 
vidual creditors,  but  some  of  them  such  as  would  not  ordinarily 
apply  to  all  creditors.  Indeed,  those  specified  in  the  first  and 
fourth  subdivisions  of  the  section,  have  no  application  to  any 
other  creditor  than  the  one  prosecuting,  nor  any  relation  to  any 
other  suit  than  the  one  in  which  such  creditor  is  prosecuting  the 
debt  or  demand  due  to  him  from  the  defendant,  or  in  which  he 
has  obtained  a  judgment  or  decree.  Consequently,  if  the  con- 
struction of  the  act  be  correct  that  the  prosecuting  creditor  ob- 
taines  no  preference,  but  that  the  assignment  which  follows  is 
for  the  benefit  of  the  creditors  at  large,  the  anomaly  is  present- 
ed of  a  result  flowing  from  a  cause  with  which  it  has  no  possible 
connection,  and  without  which,  the  officer  granting  the  warrant 
would  have  no  jurisdiction  to  entertain  the  proceeding,  or  order 
the  assignment.  So,  also,  it  seems  to  me  very  apparent  that 
the  causes  specified  in  the  second  subdivision  of  the  section  have 
no  application  to  creditors  generally.  The  causes  are,  "  that 
the  defendant  has  property  or  rights  in  action  which  he  fraudu- 
lently conceals,  (that  is,  the  defendant  in  the  judgment  or  decree 
of  the  prosecuting  creditor)  or  that  he  has  rights  in  action,  or 
some  interest  in  any  public  or  corporate  stock,  money  or  evi- 
dences of  debt,  which  he  unjustly  refuses  to  apply  to  the  pay- 
ment of  any  judgment  or  decree  which  shall  have  been  rendered 
against  him,  belonging  to  the  complainant."  The  subdivision 


ALBANY,  JANUARY,  1848.  151 

Spear  v .  Wardell. 

applies  exclusively  to  a  case  wherein  the  prosecuting  creditor 
has  obtained  a  judgment  or  decree  against  his  debtor,  and  he  has 
"  property  or  rights  in  action  which  he  fraudulently  conceals," 
or  on  application  by  such  creditor,  such  debtor  unjustly  re- 
fuses to  apply  his  equitable  assets  to  the  payment  of  such 
judgment  or  decree.  There  must,  therefore,  be  an  unjust  re- 
fusal, on  the  part  of  the  debtor  to  apply  his  property  that  an 
ordinary  fi.  fa,  cannot  reach,  to  the  payment  of  the  judgment 
or  decree  of  the  prosecuting  creditor  ;  without  which,  for  want 
of  jurisdiction  in  the  officer  the  proceeding  would  be  void.  It 
contemplates  a  charge  that  none  but  the  prosecuting  creditor, 
either  at  the  initiation  of  the  proceeding,  or  at  any  other  time, 
can  make,  and  has  reference  to  the  payment  of  his  debt,  and 
no  other.  If,  by  substantiating  the  charge,  and  arresting  the 
debtor  and  thus  compelling  an  assignment  of  his  property,  the 
prosecuting  creditor  acquires  no  right  of  priority  under  such 
assignment,  or  no  right  attaches  in  his  favor  on  the  debtor's 
property,  but  the  same  is  to  be  distributed  pro  rata  amongst  his 
creditors,  it  seems  to  be  a  very  absurd  mode  of  accomplishing 
the  result. 

The  remaining  sections  aim  especially  at  securing  the  rights 
of  the  prosecuting  creditor.  By  the  seventh  section  the  debtor 
may  controvert  any  of  the  facts  and  circumstances  on  which 
the  prosecuting  creditor's  warrant  issued.  The  latter  alone 
may  examine  the  defendant  touching  facts  material  to  the 
inquiry  ;  the  debtor  and  such  creditor  are  the  only  parties  that 
may  offer  proofs ;  and  if  the  debtor  obtains  an  adjournment 
of  the  proceedings,  the  bond  shall  be  given  to  such  creditor, 
and  its  penalty  shall  be  in  double  the  amount  of  the  debt  that 
he  claims.  The  proceedings  prescribed  in  the  tenth  section 
for  averting  a  commitment,  respect  only  the  prosecuting  cre- 
ditor, and  his  debt  or  demand.  If  such  debt  or  demand,  with 
costs,  be  paid  by  the  debtor,  or  security  be  given  for  such 
payment  within  sixty  days,  no  commitment  is  to  be  granted, 
and  the  proceedings  are  at  an  end.  No  other  creditor  can 
continue  them  for  his  own  benefit,  or  with  the  view  of  coerc- 
ing an  assignment.  The  debt  or  demand  claimed  in  the  pend- 


152  CASES  IN  THE  COURT  OF  APPEALS. 


Spear  v.  Wardell. 


ing  suit,  or  by  the  judgment  of  the  prosecuting  creditor,  being 
paid,  the  operation  of  the  new  remedy,  in  lieu  of  the  old  one 
of  imprisonment,  consequently  ceases.  So,  also,  the  bonds 
prescribed  by  such  section  are  to  be  given  to  the  prosecuting 
creditor,  and  in  penalties  twice  the  amount  of  his  debt,  show- 
ing that  the  entire  section  has  relation  to  the  satisfaction  or 
security  of  his  interests  alone.  By  the  eleventh  section,  the 
debtor  being  committed  to  prison,  can  only  be  discharged  by 
the  performance  of  acts,  or  the  happening  of  a  contingency, 
having  relation  exclusively  to  his  connection  with,  or  a  right 
gained  by  the  prosecuting  creditor.  Such  debtor  is  to  be  dis- 
charged in  case  final  judgment  shall  be  rendered  in  his  favor 
in  the  suit  of  the  prosecuting  creditor,  as  he  would  have  been 
if  imprisoned  under  the  abolished  remedy  on  mesne  process. 
So  also  if  he  pays  the  debt  or  demand  of  the  prosecuting 
creditor,  or  gives  security  for  its  payment,  or  executes  to  him 
either  of  the  bonds  mentioned  in  the  tenth  section,  or  justly 
and  fairly  assigns  all  his  property  by  which  payment  of  the 
prosecuting  creditor's  debt  may  be  secured  or  enforced. 

By  the  fourteenth  section  the  prosecuting  creditor  is  the 
only  person  who  is  to  have  notice  of  the  time  and  place  of 
the  debtor's  presenting  a  petition  for  an  assignment  of  his 
property,  and  for  a  discharge,  and  on  whom  copies  of  such 
petition,  and  the  account  and  inventory  thereto  annexed,  are 
to  be  served.  By  the  twenty-fourth  section,  whenever  a  bond 
to  avert  a  commitment,  given  under  the  tenth  section,  shall 
become  forfeited  by  the  non-performance  of  the  condition 
thereof,  it  may  be  sued  by  the  prosecuting  creditor  only,  and 
he  may  recover  on  it  the  amount  of  his  claim ;  and  there  is 
no  provision  for  the  recovery  on  such  bond  of  the  claims  of 
other  creditors.  By  the  act,  as  amended  in  1845,  the  debtor, 
instead  of  assigning  his  property,  may  be  discharged  from  im- 
prisonment upon  his  putting  in  and  perfecting  special  bail  in 
any  suit  which  shall  have  been  commenced  against  him  by  the 
prosecuting  creditor,  whether  a  judgment  or  decree  shall  have 
been  obtained  thereon  or  not ;  and  having  thus  put  in  and 
perfected  bail,  and  obtained  his  discharge,  he  may  be  impri- 


ALBANY,  JANUARY,  18-18  153 

Spear  v.  Wardell. 

soned  upon  any  execution  issued  against  his  body,  in  such 
suit  in  the  same  manner,  as  though  the  act  of  1831  had  not 
been  passed. 

Thus  is  kept  constantly  in  view  a  right  attaching  to  or  ac- 
quired by  the  creditor  who  initiates  the  proceeding  and  pur- 
sues the  debtor.  The  provisions  of  the  act,  step  by  step,  aim 
at  the  satisfaction  of  his  debt  or  demand.  He  alone  is  to 
have  notice  of  the  various  steps  the  debtor  may  take  to  avert 
commitment,  or  in  obtaining  his  discharge ;  and  he  alone  is 
to  be  charged  with  the  costs  and  expenses  which  the  debtor 
shall  have  incurred  in  the  event  of  a  dismissal  of  the  com- 
plaint. 

But  it  is  insisted,  that,  notwithstanding  the  debtor  be  ar- 
rested in  the  suit  of  the  prosecuting  creditor  only,  that  up  to 
the  conviction,  no  person  but  such  creditor  can  take  any  part 
in  the  proceedings,  and  that  all  the  means  pointed  out  by  the 
act  for  the  debtor  to  avert  commitment,  enure  exclusively  to 
the  benefit  of  such  creditor ;  yet,  that  when  the  debtor  shall 
be  discharged  by  petition  and  assignment,  such  assignment 
shall  be  for  the  benefit  of  all  his  creditors  rateably.  This 
construction  is  certainly  in  opposition  to  the  general  tenor  of 
the  act.  Without  the  clearest  light,  therefore,  to  be  drawn 
from  its  provisions  relating  to  the  petition  and  assignment,  I 
should  hesitate  long  to  adopt  a  construction  that  would  totally 
destroy  its  efficacy  as  a  remedial  statute,  and  leave  men  to 
make  fraudulent  dispositions  of  their  property,  and  to  con- 
tract debts  without  the  least  means  of  coercing  their  pay- 
ment. I  see  nothing,  however,  in  those  sections,  relating  to 
the  petition,  assignment  and  discharge,  which  imperatively 
calls  for  such  a  construction.  The  twelfth  section  provides 
that  the  debtor  who  may  be  committed  to  prison  at  the  suit 
of  the  prosecuting  creditor,  or  who  shall  have  given  a  bond  to 
avert  commitment  on  the  complaint  of  such  creditor,  condi- 
tioned that  he  will,  within  thirty  days  from  conviction,  apply 
for  an  assignment  of  all  his  property  and  for  a  discharge,  or 
against  whom  any  suit  shall  have  been  commenced  in  a  Court 

of  Record,  in  which  such  debtor,  by  the  provisions  of  the  act, 

20 


154  CASES  IN  THE  COURT  OF  APPEALS. 


Spear  v.  Wardell. 


cannot  be  arrested  or  imprisoned,  may  petition  that  his  pro- 
perty may  be  assigned,  and  that  he  may  have  the  benefit  of 
the  provisions  of  the  act.  The  only  benefit  that  the  act  con- 
fers, and  for  which  he  may  pray,  is  to  be  exonerated  from 
being  proceeded  against  under  those  sections  which  relate  to 
his  arrest  and  conviction  for  any  fraud  committed  or  intended 
before  his  discharge,  by  any  creditor  entitled  to  a  dividend  of 
his  estate.  The  only  creditors  in  a  situation  to  proceed  against 
him  under  the  act,  at  the  time  of  the  debtor's  application,  are 
those  enumerated  in  this  section,  and  they  are  consequently 
the  only  persons  whose  rights  are  to  be  immediately  affected. 
Their  relation  to  the  debtor  assimilates  to  that  formerly  sus- 
tained by  creditors  who  had  charged  in  execution  the  person 
of  their  debtor.  The  petition  is  not  that  he  may  have  a  dis- 
charge that  shall  exonerate  him  from  being  proceeded  against 
by  all  creditors ;  for  if  this  were  so,  the  debtor  would  receive 
a  discharge  as  against  all  not  in  a  situation  to  pursue  the  pro- 
ceedings under  the  act,  without  notice  to  them.  By  the 
thirteenth  section,  the  debtor,  on  presenting  his  petition,  is  to 
deliver  an  account  of  his  creditors,  and  an  inventory  of  his 
estate,  similar,  in  all  respects,  to  the  account  and  inventory 
required  of  a  debtor  by  the  sixth  article,  of  title  first,  of 
chapter  five,  of  the  second  part  of  the  Revised  Statutes  ;  and 
shall  annex  to  such  petition,  account  and  inventory,  an  affida- 
vit similar,  in  all  respects,  to  the  oath  required  by  the  fifth 
section  of  such  article.  Now,  this  sixth  article  provides  for 
a  proceeding  on  the  part  of  the  debtor  which  shall  enure  to 
the  benefit  of  the  prosecuting  creditor  or  creditors  alone,  and 
the  inventory  is  unlike  that  to  be  made  when  such  debtor  as- 
signs, under  the  third  and  fifth  articles  of  the  same  chapter, 
for  the  benefit  of  all  his  creditors.  But  the  Chancellor  thinks 
"  that  the  person  who  drew  the  act,  probably  by  inadvertence 
substituted  the  sixth  for  the  fifth  article,  as  the  thirteenth 
section  of  the  act  of  1831  provides  that  the  debtor  shall  de- 
Uver  an  account  of  his  creditors,  and  an  inventory  of  his 
estate  similar,  in  all  respects,  to  the  account  and  inventory 
required  by  the  sixth  article,  and  by  the  sixth  article  no  ac- 


ALBANY,  JANUARY,  1848.  155 

Spear  v.  WardelL 

count  of  creditors  is  required  to  be  annexed  to  his  petition." 
I  should  certainly  be  unwilling  to  rest  a  construction  of  this 
section,  and  as  a  consequence  possibly  the  act  itself,  on  a  sup- 
posed "  inadvertence"  of  the  framer  of  the  law,  or  of  the  Le- 
gislature that  passed  it.  By  the  sixth  article,  the  debtor  must 
set  forth  in  his  petition  "the  cause  of  his  imprisonment," 
which,  of  course,  would  embrace  the  name  or  names  of,  and 
the  sum  or  sums  due  to,  the  creditor  or  creditors  at  whose  suit 
he  is  imprisoned,  and  who  only  are  interested,  and  this  would 
be  informally  "  an  account  of  his  creditors."  I  understand 
the  requirement  of  the  thirteenth  section  of  the  act  to  be, 
that  the  debtor  shall  deliver  an  account,  not  of  all  his  credi- 
tors, but  of  those  mentioned  in  the  twelfth  section  who  have 
pursued  or  may  pursue  him  to  a  conviction  under  the  ninth 
section.  If  the  reference  to  the  sixth  article  be  incorrect, 
then  either  no  affidavit  would  be  required,  or  one  varying  es- 
sentially from  that  prescribed  in  such  article.  By  the  third 
and  fifth  articles  of  the  chapter  of  the  Revised  Statutes  re- 
ferred to,  the  debtor  is  to  make  oath,  substantially,  that  he 
has  not  preferred  any  of  his  creditors  with  a  view  to  obtain 
the  prayer  of  his  petition,  or  "  with  the  view  that  they  should 
abstain  or  desist  from  opposing  his  discharge  ;"  but  such  is 
not  the  nature  of  the  oath  required  by  the  sixth  article,  where 
the  question  of  preference  as  to  creditors  generally  does  not 
arise,  and  where  the  debtor's  discharge,  as  in  the  third  and 
fifth  articles,  cannot  be  denied  for  giving  such  preference. 
Instead  of  the  thirteenth  section  incorrectly  referring  to  the 
sixth  article,  I  think  such  reference  is  in  harmony  with  the 
objects  and  aim  of  the  act  as  developed  in  the  preceding  sec- 
tions ;  and  instead  of  having,  as  the  Chancellor  concludes, 
"  no  particular  bearing  upon  the  question  as  to  who  is  to  take 
the  beneficial  interest  in  the  assigned  property  under  the  as- 
signment provided  for  in  the  sixteenth  section,"  it  furnishes 
a  strong  foundation  for  the  opinion  that  the  Legislature  did 
not  intend  that  such  assignment  should  enure  to  the  benefit 
of  all  the  assignor's  creditors  rateably.  For  had  such  been 
the  intention,  the  inventory  and  oath  would  doubtless  have 


156  CASES  IN  THE  COURT  OF  APPEALS. 


Spear  v.  Wardell. 


been  assimilated  to  those,  in  cases  under  our  insolvent  laws, 
which  contemplate  such  a  result,  and  which  look,  in  such  in- 
ventory and  oath,  and  in  all  other  proceedings,  to  securing 
equality  of  distribution  amongst  creditors.  The  discharge, 
by  the  seventeenth  section,  only  operating  against  a  particu- 
lar class  of  creditors,  there  was  a  propriety  in  assimilating 
the  proceedings  to  a  branch  of  the  existing  insolvent  laws, 
whose  operationfwas  of  a  similar  character. 

The  fifteenth  and  sixteenth  sections  of  the  act,  regulate  the 
proceedings  on  the  debtors  petition  ;  and  direct  that  if  at  the 
hearing  the  opposing  creditor  shall  fail  to  satisfy  the  officer 
that  such  proceedings  are  not  just  and  fair,  or  that  he  has 
concealed,  removed  or  disposed  of  any  of  his  property  with 
intent  to  defraud  his  creditors,  such  officer  shall  order  an 
assignment  of  all  the  property  of  the  debtor  in  the  same 
manner  as  provided  in  the  fifth  article,  of  the  first  title,  of 
the  fifth  chapter  of  the  Revised  Statutes,  except  such  as  is 
therein  exempt ;  which  assignment  shall  be  executed  with  the 
like  effect  as  declared  in  such  article,  and  shall  be  recorded 
in  the  same  manner.  By  an  examination  of  the  fifth  article 
it  will  be  found  that  the  only  effect  declared  therein  is  "  to 
vest  (by  the  assignment)  in  the  assignees  all  the  interest  of 
such  insolvent  at  the  time  of  executing  the  same,  in  any  estate 
or  property,  real  or  personal,  whether  such  interest  be  legal  or 
equitable."  It  no  where  declares  who  are  to  be  the  distributees 
under  the  assignment.  It  would  seem  that  the  reference  to 
the  article  is  simply  for  the  purpose  of  ascertaining  what  pro- 
perty the  assignment  passes,  and  the  period  from  which  it  re- 
lates. I  cannot  avoid  the  conviction,  that  if  the  intention 
had  been  to  determine  who  were  to  be  the  distributees,  the 
Legislature  would  have  referred  to  those  sections  of  the  insol- 
vent laws  specifically  regulating  that  subject ;  and  I  am  not 
disposed,  with  the  view  of  establishing  a  particular  theory  of 
distribution,  to  argumcntatively  incorporate  into  the  article 
referred  to,  a  provision  of  another  article,  which,  in  accord- 
ance with  my  view  of  the  general  object  and  intent  of  the  act 
of  1831,  the  Legislature  designedly  omitted. 


ALBANY,  JANUARY,  1848.  157 


Spear  v  Wardell. 


The  eighteenth  section  provides  that  the  assignees  to  whom 
the  assignment  shall  be  made,  shall  be  vested  with  all  the 
rights  and  powers  over  the  property  so  assigned  which  are 
specified  in  the  eighth  article,  of  the  first  title,  of  chapter  five, 
of  the  second  part  of  the  Revised  Statutes,  and  shall  be  sub- 
ject to  the  same  duties,  obligations  and  control  in  all  respects, 
and  shall  make  dividends.  The  only  section  in  the  eighth 
article  which  directs  as  to  distribution,  provides  a  different 
mode  in  proceedings  under  each  of  the  articles  of  the  title. 
Under  the  third  and  fifth  articles,  the  distribution  is  to  be 
among  all  who  were  creditors  at  the  time  of  the  execution  of 
the  assignment ;  under  the  sixth  article,  among  those  at  whose 
suit  the  debtor  was  imprisoned  on  execution  at  the  time  of  his 
discharge.  So  that  the  eighth  article  throws  no  light  on  the 
question  of  distribution. 

It  is  apparent  that  if  the  Chancellor's  construction  of  the 
16th,  17th  and  18th  sections  of  the  act  of  1881,  be  the  only 
"sensible"  one,  viz  :  that  the  assignee  takes  the  property  of 
the  debtor  as  a  trustee  for  the  benefit  of  all  the  creditors  of 
the  assignor  rateably,  then  the  discharge  should  exempt  the 
debtor  from  arrest  or  imprisonment  generally ;  but  such  cer- 
tainly is  not  the  intent  of  the  act.  The  seventeenth  section 
specifically  declares  the  effect  of  the  discharge.  It  is,  that  for 
any  fraud  committed  or  intended  before  such  discharge,  the 
debtor  shall  be  exonerated  from  being  proceeded  against  under 
those  sections  which  authorize  his  arrest  and  conviction  by  any 
creditor  entitled  to  a  dividend  of  his  estate  ;  not  that  he  shall 
be  exonerated  from  arrest  and  imprisonment  by  all  creditors, 
but  clearly,  by  reasonable  construction  of  language,  by  those 
creditors  only,  who,  before  such  discharge,  were  entitled  to 
proceed  against  them  under  the  act.  No  creditor  unless  he 
had  commenced  a  suit  or  obtained  a  judgment  or  decree  could 
proceed ;  and  it  is  against  the  proceedings  of  such  creditors 
alone  that  the  discharge  operates.  Its  operation  cannot  be 
against  all  creditors.  The  Legislature  could  not  have  intended 
to  conclude  creditors  by  proceedings  of  their  debtor,  of  which 
proceedings  they  were  not  to  have  notice.  If  this  were  so,  a 


158  CASES  IN  THE  COURT  OF  APPEALS. 

Spear  v.  Wardell. 

debtor  in  collusion  with  a  friendly  prosecuting  creditor  might 
fraudulent  pursue  the  provisions  of  the  act  to  an  assignment 
and  discharge,  and  other  creditors,  without  notice,  be  bound 
by  his  proceedings.  If,  therefore,  the  discharge,  which  is  the 
fruit  of  the  assignment,  is  only  to  operate  against  those  credi- 
tors who  may  pursue  the  provisions  of  the  act,  that  would 
seem  to  follow,  which  is  but  equity,  that  the  distribution  of 
the  debtor's  property  should  be  among  those  affected  by  it. 
This  is  a  principle  always  heretofore  acted  upon  in  the  distri- 
bution of  the  estates  of  insolvents,  and  on  no  other  principle 
can  equity  be  done.  In  a  case  under  this  act,  if  the  principle 
of  equality  of  distribution  amongst  all  creditors  should  gov- 
ern, the  effect  would  be  that  a  certain  class  of  creditors  whose 
remedy,  by  coercion  was  gone,  would  but  receive  rateably 
with  others  to  whom  it  was  continued  ;  and  whilst  the  right  of 
the  particular  creditors  specified  in  the  second  section  of  the 
act  to  imprison  the  debtor  remained,  they  would  also,  under  a 
remedy  not  given  to  them,  become  distributees  rateably  of  his 
property.  This,  in  respect  to  the  means  provided  for  enforc- 
ing payment  from  a  fraudulent  debtor,  would  not  be  that 
"  equality  among  creditors"  which,  under  other  circumstan- 
ces, is  declared  to  be  equity. 

An  attentive  consideration  of  its  provisions  has  led  me  to 
the  conclusion,  that  the  intent  of  the  act  of  1831,  was,  after 
abolishing  imprisonment  for  debt  in  suits  arising  upon  contract 
to  provide  a  remedy  for  those  immediately  effected  by  such 
abolition,  through  which  they  might  reach  the  fraudulent 
debtor's  property,  to  satisfy  their  demands  ;  that  the  proceed- 
ings taken  under  such  act  enure  to  the  benefit  of  the  prose- 
cuting creditors  exclusively ;  that  by  initiating  and  pursuing 
the  remedy  prescribed  by  it,  they  acquire  a  right  of  priority 
or  preference  in  the  distribution  of  the  debtor's  estate  ;  and 
that  neither  expressly  or  by  implication  is  there  any  authority 
for  such  distribution  amongst  creditors  generally,  but  the 
whole  scope  and  tenor  of  the  act  is  in  opposition  to  it.  I  am, 
therefore,  of  the  opinion  that  a  voluntary  assignment  by  the 
debtor  of  all  his  property  for  the  benefit  of  his  creditors  gen- 


ALBANY,  JANUARY,  1848.  159 


Spear  v.  Wardell. 


erally,  pending  the  proceedings  against  him,  and  in  order  to 
defeat  the  prosecuting  creditor's  preference  of  payment  out  of 
such  property,  is  a  fraud  upon  the  act  of  1881,  and  upon  the 
rights  of  such  prosecuting  creditor. 

In  the  present  case,  after  the  arrest  on  the  complaint  of 
the  appellants,  and  pending  the  proceedings  against  them, 
the  respondents,  Charles  Wardell  and  Charles  E.  "Wardell, 
executed  an  assignment  to  Henry  B.  Wardell,  of  all  their 
co-partnership  property  and  effects  to  pay  all  their  creditors 
rateably,  and  Charles  Wardell,  also,  at  the  same  time,  assign- 
ed to  Henry  B.  Wardell  all  his  individual  property,  in  trust, 
to  pay  his  individual  creditors  rateably,  and  then  to  apply  the 
surplus  to  the  payment  pro  rata  of  the  creditors  of  the  firm. 
The  whole  of  the  property  at  the  date  of  the  assignment  was 
delivered  to  the  assignee,  who  now  holds  and  refuses  to  make 
any  disposition  of  it,  or  the  proceeds  thereof,  otherwise  than 
upon  the  terms  expressed  in  assignment  to  him.  The  res- 
pondents, in  their  answer  admit  that  the  assigned  property  is 
much  more  than  sufficient  to  pay  the  demand  of  the  appellants. 
These  assignments  were  made  in  fraud  of  the  act,  and  of  the 
rights  of  the  appellants  acquired  thereunder ;  and  it  is  plainly 
to  be  perceived,  were  so  intended  by  the  respondents  them- 
selves. For  if,  as  they  now  contend,  the  statutory  assignee 
would  take  for  the  benefit  of  all  creditors,  why,  pending  the 
proceedings,  voluntarily  make  assignments  having  the  like 
effect?  Nothing  can  be  more  undoubted  than  that  the  res- 
pondents contemplated  a  fraudulent  interference  with  the  statu- 
tory assignment. 

On  the  main  question,  therefore,  I  am  of  the  opinion  that 
that  the  decree  of  the  Chancellor  is  erroneous,  and  should  be 
reversed.  With  regard  to  the  mode  in  which  relief  shall  be 
granted  to  the  appellants  under  the  circumstances  of  this  case, 
my  views  fully  accord  with  those  expressed  by  my  brother 
Bronson. 

BRONSON,  J.  The  first  question  is,  whether  the  assign- 
ment which  a  debtor  executes  under  the  non-imprisonment 


160  CASES  IN  THE  COURT  OF  APPEALS. 

Spear  v.  Wardell. 

law,  (Stat.  1831,  p.  400,  §  16-17)  is  for  the  benefit  of  all  hia 
creditors  ;  or  whether  the  assigned  property  goes  exclusively 
to  the  creditor  who  instituted  the  proceedings.  The  Chan- 
cellor had  considered  this  as  an  open  question ;  but  as  I 
understand  the  authorities,  it  had  been  settled,  so  far  as  the 
Supreme  Court  could  settle  it,  that  the  property  goes  to  the 
particular  creditor  who  compelled  the  assignment,  to  the 
exclusion  of  all  others,  until  his  debt  is  paid.  The  proceed- 
ing is  nothing  more  than  a  statute  execution  which  reaches 
property  not  subject  to  seizure  by  fieri  facias,  and  such  as, 
through  the  fraud  of  the  debtor,  either  has  been,  or  is  in 
danger  of  being  placed  beyond  the  reach  of  ordinary  process. 
The  question  was  considered  in  The  People  vs.  Abel,  (3  Hill 
109,)  and  though  not  then  decided,  I  well  recollect  that  there 
was  no  diversity  of  opinion  among  the  Judges  on  the  subject. 
And  in  Bartholomew  vs.  Setts,  (4  Sill  577,)  the  point  was 
necessarily  decided ;  for  if  the  act  of  1831  is  an  insolvent 
law,  its  operation  was  suspended  by  the  bankrupt  act  at  the 
time  the  creditor  in  that  case  instituted  proceedings  to  compel 
an  assignment ;  and  it  clearly  is  an  insolvent  law,  if  an  assign- 
ment under  it  is  made  for  the  benefit  of  all  the  creditors.  It 
was  therefore  necessary  to  decide  the  question ;  and  the  Court 
held,  that  the  act  of  1831  was  not  an  insolvent  law,  but  only 
a  new  remedy  in  favor  of  a  creditor  who  had  commenced  a 
suit,  or  recovered  a  judgment  against  the  debtor.  Moak  vs. 
De  Forrest,  (5  Hill  605,)  holds  the  same  doctrine.  And  so 
far  as  I  have  been  able  to  learn,  the  non-imprisonment  law 
lias  uniformly  received  this  construction  among  those  who 
have  administered  it,  from  the  time  of  its  enactment  in  1831, 
down  to  the  time  this  case  was  decided  in  August  last.  I  do 
not  think  it  necessary  to  add  any  thing  on  this  branch  of  the 
case  further  than  to  say,  that  the  high  respect  which  I  always 
feel  for  the  opinions  of  the  Chancellor  has  induced  a  care- 
ful re-consideration  of  the  question,  which  has  resulted  in 
confirming  my  former  opinion. 

The  defendants,  in  the  judgment  were  arrested  on  the  war- 
rant and  taken  before  the  Circuit  Judge  on  the  fifth  of  No- 


ALBANY,  JANUARY,  1848.  161 


Spear  v.  Wardell. 


vember ;  and  after  several  adjournments,  the  Judge,  on  the 
28th  day  of  that  month,  decided  that  the  allegations  of  the 
complainants  were  substantiated ;  that  the  defendant  had  rights 
in  action  and  evidences  of  debt  which  they  had  unjustly  re- 
fused to  apply  to  the  payment  of  the  judgment,  and  that  a 
commitment  must  issue  in  pursuance  of  the  9th  section  of  the 
act.  Pending  the  proceedings,  and  on  the  2Ist  day  of  the 
month,  the  defendants  in  the  judgment  made  a  voluntary 
assignment  of  all  their  property  to  the  defendant  Henry  B. 
Wardell,  the  son  of  the  defendant  Charles  "Wardell,  in  trust, 
to  apply  the  avails  of  the  property,  after  satisfying  the  ex- 
penses of  executing  the  trust,  for  the  benefit  of  all  the  credi- 
tors, without  any  preference.  The  value  of  the  property  thus 
assigned  greatly  exceeded  the  debt  of  the  complainants  ;  but 
was  not  enough  to  pay  all  the  creditors  :  and  in  consequence 
of  this  assignment  the  defendants  in  the  judgment  had  no 
estate  to  insert  in  their  inventory  when  they  afterwards  ap- 
plied to  the  Judge  for  a  discharge  under  the  act,  for  the  pur- 
pose of  preventing  the  commitment  which  had  previously  been 
ordered.  Now  although  the  complainants  acquired  no  lien 
upon  the  property  by  commencing  proceedings  under  the  act, 
they  acquired  the  right  to  a  preference  over  the  other  credi- 
tors, which  could  not  be  defeated  by  a  voluntary  assignment ; 
and  the  transfer  of  the  property  to  Henry  B.  Wardell  was  a 
fraud  upon  the  law,  and  the  complainants,  which  a  Court  of 
equity  should  not  permit  to  succeed.  (Wood  vs.  Bolard,  8 
Paige  556,  matter  of  Hurst,  7  Wend.  239;  Sadden  vs.  Spa- 
der, 20  John.  554  ;  McDermutt  vs.  Strong,  4  John  Oh.  687.) 
The  Chancellor  would,  I  presume,  have  felt  no  difficulty  in 
granting  relief,  if  he  had  not  come  to  the  conclusion  that  the 
assignment  under  the  statute  was  for  the  benefit  of  all  the 
creditors. 

If  the  complainants  had  obtained  a  lien  on  the  property  by 
commencing  proceedings  under  the  statute  and  the  title  had 
vested  in  Nash  the  statute  assignee,  he  would  then  have  been 
a  necessary  party  to  the  bill.  But  as  their  was  no  lien,  the 

legal  title  to  the  property  passed  to  the  defendant  Henry  B. 

21 


162  CASES  IN  THE  COURT  OF  APPEALS. 

Spear  v.  Warded. 

Wardell  under  the  voluntary  assignment ;  and  so  long  as  that 
assignment  stands,  Nash  has  no  interest  which  can  make  it 
necessary  for  him  to  join  with  the  complainants  in  a  bill  for  the 
assertion  of  their  rights.  If  we  should  set  aside  the  volun- 
tary assignment,  and  thus  subject  the  property  to  the  opera- 
tion of  the  statute  assignment,  then  Nash  might  be  a  neces- 
sary party.  But  there  is  no  occasion  for  setting  aside  the 
voluntary  assignment.  It  covers  a  large  amount  of  property 
beyond  what  is  necessary  to  pay  the  debt  of  the  complainants, 
and  they  are  the  only  creditors  who  are  entitled  to  a  prefer- 
ence. The  proper  course,  having  regard  to  the  rights  and 
interests  of  all  the  creditors,  will  be,  to  declare  that  Henry 
B.  Wardell  holds  the  assigned  property  as  a  trustee  for  the 
complainants  to  the  extent  of  their  debt,  and  make  a  decree 
that  he  pay  the  same.  In  this  view  of  the  case  Nash  has  no 
interest,  and  the  objection  that  he  should  have  been  made  a 
party  must  be  overruled. 

I  am  of  opinion  that  the  decree  of  the  Court  of  Chancery 
shonld  be  reversed ;  and  that  a  decree  should  be  entered  in 
favor  of  the  complainants,  as  above  suggested.  They  should 
also  have  costs  in  the  Court  of  Chancery. 

Decree  accordingly. 


ALBANY,  JANUARY,  1848.  163 


Burkle  v.  Luce. 


163 

s      HA    330 
s  1  239 

BURKLE  and  GEBBARD,  Executors,  &c..  vs.  LUCE.  e3(>        '624 

36  2628 

After  a  Sheriff  had  levied  upon  property  which  belonged  to  the  defendant  in  the     d97  J157 

execution,  another  person  brought  replevin,  and  had  the  same  property  deliv-         2  Tr         78 
ered  to  him  upon  the  writ,  and  died  pending  the  action;  field,  that  the  Sheriff 
might  retake  the  property  and  sell  it  to  satisfy  the  execution. 

On  the  dea.th  of  a  plaintiff  in  replevin  the  action  abates  and  cannot  be  revived  by 
scire  facias. 

In  such  a  case  the  defendant  has  no  remedy  upon  the  replevin  bond. 

Where  the  original  Execution  upon  which  a  levy  had  been  made  was  lost,  and 
the  Supreme  Court  from  which  it  issued,  ordered,  on  motion,  that  a  new  one 
like  the  original  be  issued  as  a  substitute  therefor,  that  the  Sheriff's  certificate 
of  the  levy  be  endorsed  thereon,  and  that  such  substituted  execution  and  cer. 
tificate  have  the  same  force  and  effect  as  the  original  would  have;  and  a  new 
execution  was  issued  and  endorsed  accordingly ;  held,  that  the  same  was 
admissible  as  primary  evidence  to  prove  and  justify  the  levy  without  showing 
the  loss  of  the  original. 

On  error  from  the  Supreme  Court.  Burkle  and  Gebbard, 
as  executors  of  the  will  of  Charlotte  Seitz,  sued  Luce  in  re- 
plevin. The  cause  was  first  tried  at  the  Oswego  Circuit  in 
June,  1843,  when  a  verdict  was  had  for  the  plaintiffs.  The 
Supreme  Court  on  hill  of  exceptions  granted  a  new  trial. 
(See  6  Hill  558.)  The  cause  was  again  tried  before  GRID- 
LEY,  Circuit  Judge,  at  the  Oswego  Circuit,  in  June,  1845. 
The  case  was  this:  The  defendant  was  a  deputy  of  the 
Sheriff  of  Oswego  county,  and  on  the  8th  of  January,  1840, 
a  fieri  facias  was  delivered  to  him  against  Christian  J.  Bur- 
kle, and  on  the  same  day  he  levied  it  upon  the  property  in 
controversy.  Charlotte  Seitz  claiming  the  property  under  a 
previous  sale  to  her  from  Burkle,  brought  replevin  against 
the  defendant  and  had  the  goods  delivered  to  her  by  virtue 
of  the  writ.  That  action  was  tried  and  a  verdict  found  for 
the  defendant,  which  was  set  aside,  and  a  new  trial  ordered. 
Afterwards  on  the  llth  of  February,  1842,  Mrs.  Seitz,  the 
plaintiff  in  that  action  died,  having  made  her  will,  and  ap- 
pointed the  plaintiffs  in  this  suit  her  executors.  In  July  or 
August  following,  the  defendant  repossessed  himself  of  the 
goods,  and  claimed  to  hold  them  by  virtue  of  his  levy  above 


164  CASES  IN  THE  COURT  OF  APPEALS. 


Burkle  r.  Luce. 


mentioned  ;  and  thereupon  the  plaintiffs  as  executors  brought 
this  second  action  of  replevin  and  retook  the  property. 

Burkle,  the  defendant  in  the  execution,  was  the  owner  of 
the  property  on  the  26th  of  December,  1839,  and  on  that 
day  executed  a  bill  of  sale  of  it  to  Mrs.  Seitz,  which  sale  was 
claimed  by  the  defendant  to  be  fraudulent  and  void  as  against 
the  creditors  of  Burkle,  and  evidence  was  given  tending  to 
show  that  such  was  the  fact.  The  question  of  fraud  was 
submitted  by  the  Circuit  Judge  to  the  Jury. 

The  plaintiffs'  counsel  requested  the  Judge  to  charge,  that 
although  the  sale  by  Burkle  to  Mrs.  Seitz  might  be  fraudu- 
lent, yet  that  the  execution  of  the  writ  of  replevin  brought 
by  Mrs.  Seitz,  destroyed  the  lien  of  the  fieri  facias,  and  that 
the  defendant  had  no  right  to  retake  the  property.  The  Cir- 
cuit Judge  refused  so  to  charge,  and  the  plaintiff  excepted. 

Evidence  was  given  tending  to  show  that  the  original  fieri 
facias  was  lost  after  the  levy  was  made  under  it.  It  also  ap- 
peared that  after  the  supposed  loss,  the  plaintiff  in  the  fieri 
facias  made  a  motion  in  the  Supreme  Court  for  relief,  and 
on  that  motion,  after  hearing  counsel  on  both  sides,  the  Su- 
preme Court  made  an  order,  that  a  new  execution  be  issued 
under  the  seal  of  the  Court,  similar  to  the  original  one,  that 
the  directions  to  the  Sheriff  and  the  Sheriff's  certificate  of 
levy,  which  were  endorsed  on  the  original,  be  endorsed  on  the 
new  one  to  be  issued,  and  that  such  new  execution  and  the 
endorsements  thereon  be  of  the  same  validity  arid  effect  for 
all  purposes  as  would  have  been  the  original,  had  not  the 
same  been  lost.  In  pursuance  of  this  order  a  new  execution 
was  issued,  which  was  a  copy  of  the  original,  and  on  which 
the  defendant  as  deputy  sheriff  made  the  same  endorsement 
of  levy  as  he  had  made  on  the  original.  This  substituted 
execution  was  offered  in  evidence  on  the  trial.  This  was  ob- 
jected to  by  the  plaintiffs,  on  the  ground  that  the  loss  of  the 
original  was  not  sufficiently  proved.  The  Judge  admitted 
the  execution  in  evidence,  and  the  plaintiff  excepted. 

The  jury  found  a  verdict  for  the  defendant;  and  the  plain- 
tiffs moved  in  the  Supreme  Court  for  a  new  trial  upon  bill  of 


ALBANY,  JANUARY,  1848.  165 

Burkle  v.  Luce. 

exceptions,  which  motion  was  denied,  and  judgment  rendered 
for  the  defendant. 

W.  Duer,  for  plaintiff  in  error. 

.2V.  Sill  jr.  and  E.  B.  Talcott  for  defendant  in  error. 

JEWETT,  CH.  J.,  delivered  the  opinion  of  the  Court.  I  am 
of  opinion  that  the  action  brought  by  Mrs.  Seitz,  abated  by 
her  death,  and  could  not  be  revived  by  scire  facias.  (2  R. 
S.  576,  §2;  ib.  386-7,  §§2,  3;  Webber  vs.  Underhill,  19 
Wend.  447 ;  Outfield  vs.  Corney,  2  Wils.  R.  83.) 

The  plaintiffs,  however,  insist  that  the  delivery  of  the  goods 
to  Mrs.  Seitz,  by  virtue  of  her  writ  of  replevin,  put  an  end 
to  the  lien  acquired  by  the  levy  under  the  execution  made  by 
the  defendant,  and  consequently  he  had  no  right  to  retake  the 
property,  although  the  suit  was  at  an  end.  If  this  position 
be  correct,  it  would  seem  plain  that  the  plaintiff  in  the  exe- 
cution, might  lose  all  remedy  under  it  to  collect  his  debt,  al- 
though there  was  enough  property  of  the  defendant  in  the  exe- 
cution levied  upon,  to  satisfy  it,  and  still  have  no  remedy  upon 
the  bond  given  by  the  plaintiff,  in  the  replevin  suit,  to  the 
Sheriff  on  his  executing  the  writ ;  the  condition  of  the  bond 
being,  that  the  plaintiff  will  prosecute  the  suit  to  effect,  and 
without  delay,  and  that  if  the  defendant  recover  judgment 
against  the  plaintiff  in  the  action,  he  will  return  the  same 
property,  if  return  thereof  be  adjudged,  and  will  pay  to  the 
defendant  all  such  sums  of  money  as  may  be  recovered  against 
him,  by  such  defendant  in  the  said  action,  for  any  cause  what- 
ever. To  comply  with  the  conditions  of  the  bond,  the  plain- 
tiff was  required,  1st,  to  prosecute  her  suit  to  effect  without  de- 
lay, and  2d,  in  case  the  defendant  recovered  judgment  against 
her  in  the  suit,  to  return  the  same  property,  &c.  Having  died 
during  the  due  prosecution  and  pendency  of  the  suit,  the  law 
holds  that  the  prosecution  was  to  effect,  "  because  there  was 
neither  a  non-suit  or  verdict  against  her."  (2  R.  S.  523,  §  7  ; 
Badlam  vs.  Tucker,  ~L  Pick.  284 ;  Duke  of  Ormand  vs. 


166  CASES  IN  THE  COURT  OF  APPEALS. 

Burkle  r.  Luce. 

Btesly,  Carthew  519,)  and  therefore  no  breach  of  the  condi- 
tion of  the  bond  occurred,  and  the  defendant  has  no  remedy 
upon  it,  although  the  suit  was  at  an  end  and  the  plaintiffs 
representatives  were  in  quiet  possession  and  use  of  the  proper- 
ty replevied.  The  condition  of  the  bond  does  not  cover  the 
case.  (Cowdin  vs.  Stanton,  12  Wend.  120.) 

The  plaintiff's  counsel  has  cited,  in  support  of  his  proposi- 
tion, (Bradyll  vs.  Ball,  1  Brown  Ch.  R.  427 ;  Woglam  vs. 
Oowperthwaite,  2  Doll.  68  ;  Frey  vs.  Leeper,  2  Dall.  131 ;  and 
Acker  vs.  White,  25  Wend.  614.) 

In  the  first  case,  the  goods  of  one  Bradbury,  a  tenant,  were 
distrained  by  his  landlord  for  rent ;  the  tenant  brought  re- 
plevin, and  pending  the  suit  became  bankrupt,  as  also  his  sure- 
ties in  the  replevin  bond,  and  his  goods,  including  those  dis- 
trained, passed  into  the  hands  of  the  defendants,  Jones  and 
Ball,  his  assignees  who  sold  them.  Afterwards  the  defendant 
obtained  judgment  in  the  cause  in  replevin,  and  sued  out  a 
writ,  de  retorno  habendo,  and  filed  his  bill  in  Chancery,  insist- 
ing that  he  had  an  equitable  lien  upon  the  goods  taken  in  dis- 
tress for  a  return  of  the  goods,  or  payment  of  the  value  of  them 
by  the  assignees.  It  was  urged  by  the  defendants  that  the 
landlord  had  no  title  to  the  goods,  but  only  a  right  to  call  on 
the  Sheriff  to  take  them  into  his  possession.  That  the  writ 
carried  the  idea  of  the  right  of  the  tenant  to  sell  the  goods, 
that  the  landlord  had  no  interest  or  property  in  them  and 
could  not  prevent  the  replevin ;  that  the  sale  by  the  Commis- 
sioners took  away  all  the  right  of  the  landlord  ;  that  the  as- 
signees sold  the  goods  before  the  landlord  was  entitled  to  the 
retorno  Jiabendo ;  and  if  Bradbury  himself  had  sold  the  goods 
after  the  replevin,  the  result  must  have  been  the  same,  his 
other  goods  would  have  been  liable,  and  if  he  had  none,  the 
pledges  would  be.  That  the  replevin  bond  was  not  forfeited 
before  the  bankruptcy,  so  that  Bradbury  was  not  discharged  ; 
he  and  his  sureties  might  bo  sued,  for,  till  the  return  awarded, 
there  was  no  forfeiture  of  the  bond. 

Lord  Loughborough,  Lord  Commissioner,  said  that  when 
the  goods  were  replevied,  thev  are  delivered  over  to  abide  the 


ALBANY,  JANUARY,  1848.  167 

Burkle  v.  Luce. 

event  of  the  suit.  If  they  came  afterwards  into  the  hands 
of  persons  in  privity  with  the  tenant,  they  would  be  liable 
upon  the  return,  &c.  If  sold,  an  action  for  money  had  and 
received,  would  lie  for  the  money,  and  concluded  by  saying : 
"  If  the  assignees  were  liable  in  equity,  the  value  being  set- 
tled, they  must  be  so  at  law,  and  therefore  ordered  that  the 
bill  be  retained,  and  that  an  action  at  law  be  brought  for 
money  had  and  received  to  the  plaintiff's  use,  against  the  as- 
signees." Such  action  was  brought,  and  the  Court  held  that 
the  plaintiff  had  no  lien  upon  the  goods,  and  afterwards  the 
bill  was  dismissed,  and  the  defendant  left  to  his  remedy  on 
the  replevin  bond,  which,  in  that  case,  was  complete ;  and 
during  the  pendency  of  the  replevin  suit,  the  property  had 
passed  into  the  hands  of  the  assignees  in  bankruptcy,  who 
had  sold  the  same,  and  thereby  third  persons  had  acquired 
rights  under  the  plaintiff  in  replevin. 

The  case  of  "Woglam  vs.  Cowperthwaite,  was  this :  Emlen 
distrained  the  goods  of  Hamilton,  his  tenant,  for  rent.  The 
tenant  brought  replevin  and  gave  security  to  the  Sheriff,  and 
afterwards  moved  the  goods  into  the  house  of  Woglam,  who, 
after  rent  had  accrued  to  him,  distrained  the  same  goods. 
The  next  day  after  this  distress  was  made,  Hamilton  removed 
the  goods  from  off  the  premises.  The  officer  who  made  the 
last  distress  followed  them  and  had  them  appraised  in  the 
house  to  which  Hamilton  had  removed  them.  Shortly  after 
this,  and  while  the  goods  remained  where  they  were  appraised, 
the  defendant,  in  the  first  replevin  suit,  obtained  judgment  for 
his  rent,  and  issued  a  retorno  habendo,  by  virtue  of  which  the 
Sheriff  took  the  goods  and  delivered  them  to  Emlen's  officer 
Who  sold  them.  The  action  was  against  the  Sheriff  for  taking 
the  goods  under  the  retorno  habendo,  and  the  question  sub« 
mitted  to  the  Court  was,  whether  the  goods  were  liable  to  be 
taken  under  that  writ  so  as  to  exclude  Woglam's  distress  ?  or 
whether,  by  the  removal  of  the  goods  by  Hamilton,  the  lien 
on  the  property  acquired  by  Woglam's  distress  Avas  not  de- 
feated as  against  Emlen  ?  The  Court,  on  the  authority  of 
the  case  of  Bradyll  vs.  Ball,  held  that  no  lien  remained 


168  CASES  IN  THE  COURT  OF  APPEALS. 

Burkle  v.  Luce. 

in  Emlen ;  that  by  the  replevin  the  securities  in  the  bond 
were  substituted  in  the  place  of  the  goods,  which  were  re- 
stored to  the  tenant,  as  his  sole  property ;  that  he  might  sell 
them,  that  they  might  be  taken  in  execution,  and  that  they 
became  liable  to  any  future  lien  or  incumbrance.  Upon  the 
retorno  habendo,  if  the  identical  goods  distrained  were  found 
in  the  hands  of  the  tenant  undisposed  of  and  unincumbered, 
they  might  be  taken  by  the  Sheriff ;  if  not,  after  an  elongata 
returned,  a  wtthernam  might  go  against  the  general  goods  of 
the  tenant. 

The  same  principle  was  repeated  in  Frey  vs.  Leeper ;  that 
the  lien  on  the  goods  was  discharged  by  the  security  given 
to  the  Sheriff,  and  as  soon  as  they  were  delivered  back  to  the 
plaintiff  in  replevin,  they  were  open  to  execution  or  a  new  dis- 
tress. That  was  also  a  cause  where  the  goods  had  been  taken 
as  a  distress  for  rent. 

In  Acker  rs.  White  it  was  said  on  the  authority  of  the  first 
two  cases,  that  the  bond  given  to  the  Sheriff  is  a  substitute 
for  the  goods,  and  that  a  replevin  of  the  goods  put  an  end  to 
the  lien  of  an  execution  which  had  been  previously  levied. 
But  in  that  case  the  replevin  suit  was  still  pending. 

Neither  of  the  cases  referred  to,  decide  the  precise  point 
involved  in  this  case.  In  the  first  three  cases,  the  plaintiff 
in  replevin  was  the  general  owner  of  the  goods,  and  as 
such  had  an  unquestionable  legal  right  to  sell  or  dispose  of 
them  without  a  replevin,  subject  to  the  lien  acquired  by  the 
defendant  in  replevin  by  his  distress  for  rent ;  therefore,  in 
those  cases  there  is  some  and  perhaps  an  entire  propriety,  in 
saying,  that  the  lien  by  the  distress  was  extinguished  by  the 
replevin  and  that  the  bond  was  a  substitute  for  it,  especially 
as  the  goods  had  been  sold  or  disposed  of  by  the  general  owner 
during  the  pendency  of  the  suit  and  third  persons  had  acquir- 
ed rights  in  them. 

In  the  other  case,  White  the  plaintiff  had  purchased  the 
property  in  question  of  Jessup,  the  general  owner,  and  left  it 
in  his  possession.  But  a  few  days  prior  thereto,  Hillyer  as 
Sheriff,  under  an  execution  against  Jessup,  had  levied  upon  it 


ALBANY,  JANUARY,  1848. 


Burkle  v.  Luce. 


and  soon  after  WJiite's  purchase  took  possession  of  it,  for 
which,  White  brought  replevin  against  him,  to  whom,  under  it, 
the  property  was  delivered,  and  who  again  left  it  in  the  pos- 
session of  Jessup  ;  the  replevin  suit  was  tried  and  a  verdict 
for  Hilly  er  found,  instead  of  taking  judgment  for  a  return, 
he  elected  to  take  an  assessment  for  the  value  of  the  goods  ; 
White  made  a  motion  for  a  new  trial  which  was  undecided, 
when  Acker  subsequently  as  Sheriff  under  an  execution 
against  Jessup  upon  another  judgment,  levied  on  the  same 
property  still  in  his  possession  ;  for  which,  White  brought 
replevin  against  him  and  obtained  a  verdict  and  judgment  in 
the  Superior  Court  of  New  York;  on  error,  the  Supreme 
Court  held,  1st,  that  White  independent  of  his  purchase  of 
Jessup,  should  be  regarded  as  having  all  the  interest  in  the 
goods  which  belonged  to  Sheriff  Hillyer  under  his  fi.  fa.  and 
if  that  was  sufficient  to  defeat  the  levy  of  Acker  on  his  H.  fia. 
it  equally  enured  to  the  benefit  of  White.  That  the  bond 
was  substituted  for  the  goods,  and  was  conditioned  among 
other  things,  to  return  the  property  if  adjudged  against  him  — 
and  although  the  lien  of  the  execution  was  gone  according  to 
the  cases  cited,  it  was  because  it  was  regarded  as  an  equiva- 
lent security  for  the  satisfaction  of  the  judgment  to  the 
extent  of  the  value  of  "  the  goods.  That  it  would  seem,  there- 
fore, but  just  and  equitable  that  the  interest  to  the  extent  of 
the  lien  should  pass  to  the  party  thus  giving  the  security  and 
asking  a  deliverance  according  to  law.  And  2nd,  the  goods 
being  in  the  custody  of  the  law  under  a  valid  levy  by  Hillyer, 
who  was  entitled  to  the  exclusive  possession  of  the  same,  the 
defendant  Acker  could  not  acquire  any  new  right  to  the  pos- 
session while  that  claim  existed,  in  full  force,  to  be  satisfied 
either  out  of  the  property  by  a  return,  or  the  security  given 
therefor. 

The  case  of  Lockwood  vs.  Perry,  (9  Metcalf,  440)  in  prin- 
ciple, bears  a  nearer  resemblance  to  this  case,  than  the  cases 
above  referred  to.  There  Lockwood  was  the  owner  of  two 
colts,  —  one  Barnes  claimed  them  as  his  property,  and  by  a 
writ  of  replevin  issued  out  of  the  Common  Pleas  in  Columbia 

22 


170  CASES  IN  THE  COURT  OF  APPEALS. 


Burkle  v.  Luce. 


County  in  this  State,  the  Sheriff  took  the  colts  from  Lock- 
wood  and  delivered  them  to  Barnes.  The  action  was  tried, 
and  the  plaintiff  Barnes  recovered  a  judgment,  in  that  Court ; 
the  defendant  brought  error  to  the  Supreme  Court  where  the 
judgment  was  reversed  and  a  venire  de  novo  was  awarded, — 
before  a  trial  was  had,  Barnes  died  insolvent  while  the  suit 
was  thus  pending,  having  previously  sold  the  colts  to  the 
defendant  Perry ;  after  the  death  of  Barnes,  and  before 
Lockwood  brought  the  suit,  he  demanded  the  colts  of  Perry, 
which  he  refused  to  deliver.  He  then  brought  replevin  for 
the  colts.  The  colts  were  never  the  property  of  Barnes,  nor 
had  he  any  right  to  the  possession  of  them,  unless  he  acquired 
a  property  in  them  by  virtue  of  his  action  of  replevin.  It 
was  held  that  Perry  acquired  no  title  to  the  colts  by  purchas- 
ing them  of  Barnes. 

The  Court  in  that  case,  said,  that  the  position  taken  by  the 
defendant,  that  the  object  and  purpose  of  the  writ  of  replevin 
were  to  transfer  the  possession  of  the  article  replevied  to  the 
plaintiff  in  replevin,  was  certainly  well  maintained,  if  by  pos- 
session, be  understood,  a  possession  for  the  time  being.  That 
the  further  position  that  the  plaintiff  in  replevin,  after  the 
service  of  the  writ,  has  a  right  to  sell  the  property  thus  re- 
plevied, and  may  give  to  the  purchaser  a  good  indefeasible 
title,  which  would  not  be  affected  by  a  judgment  in  favor  of 
the  defendant  in  replevin,  was  one  more  difficult  to  be  sustain- 
ed. That  if  it  were  limited  to  replevin  in  cases  of  wrongful 
distress  of  personal  chattels  for  rent,  or  of  cattle  damage 
fcasant,  it  might  be  more  readily  assented  to,  as  in  such  cases 
the  property  is  held  by  the  defendant  in  replevin  for  a  par- 
ticular purpose,  arid  he  does  not  claim  to  be  the  owner  of  it ; 
and  where  the  plaintiff  in  replevin,  who  in  such  case  is  the  ac- 
tual owner,  has  given  the  requisite  security,  by  a  bond,  to  pay 
such  rent,  or  such  damages,  if  the  property  is  not  returned, 
it  might  be  all  that  was  requisite  to  do  perfect  justice  between 
such  parties.  That  a  plaintiff  in  replevin,  who  was  the  real 
owner  of  the  property,  might  deal  with  the  goods  as  his  own, 
and  make  a  legal  transfer.  But  that  did  not  sanction  the 


ALBANY,  JANUARY,  1848. 


Burkle  v.  Luce. 


broad  doctrine,  that  by  reason  of  the  mere  fact  that  he  had 
acquired  his  possession  through  writ  of  replevin,  his  vendee 
acquired  thereby  an  indefeasible  title  as  against  every  body. 
That  by  the  writ  of  replevin  the  plaintiff  acquired  the  right 
of  possession  pending  the  action  of  replevin,  and  that  the  real 
owner  could  not  lawfully  disturb  that  right  during  the  pen- 
dency of  the  action,  nor  institute  an  action  against  a  third 
person  who  might  become  possessed  of  the  goods  ;  and  that 
was  the  extent  of  the  right  exercised  by  force  of  a  writ  of 
replevin. 

It  was  further  held  that  the  abatement  of  the  replevin  suit, 
by  the  death  of  the  plaintiff,  operated  to  defeat  a  right  of  pos- 
session of  a  chattel  acquired  under  a  writ  of  replevin,  having 
no  other  foundation  besides  that  which  results  from  such  writ  ; 
and  that  the  defendant,  under  such  circumstances,  may  avail 
himself  of  his  antecedent  title,  as  the  lawful  owner,  to  regain 
the  possession,  although  he  may  not  have  a  judgment  for  are- 
turn  of  the  property,  provided  he  was  content  to  resort  to  the 
property  itself,  and  forego  his  remedy  upon  the  bond. 

In  the  case  at  bar,  it  has  been  shown  that  this  property  on 
which  the  defendant  levied  belonged  to  Burckle  ;  and  as  such 
the  defendant  had  an  unqualified  right  to  it  for  the  satisfac- 
tion of  the  creditor's  judgment.  Mrs.  Seitz,  without  any 
right  to  the  property  as  against  the  creditor,  availed  herself 
of  the  action  of  replevin  to  obtain  possession  of  it. 

The  suit  having  abated  by  her  death,  and  she  not  having 
sold  the  property,  but  dying  possessed  of  it,  the  plaintiffs  as 
her  executors  succeeded  to  her  rights  and  nothing  more.  In 
my  opinion  the  proceedings  upon  the  writ  of  replevin  confer- 
red upon  her  a  mere  temporary  right  of  possession,  which 
expired  with  the  abatement  of  the  suit  by  her  death,  and  that, 
when  that  event  occurred,  the  lien  of  the  execution  revived. 
Especially  as  the  rights  of  no  third  person  had  intervened. 
under  her,  and  that  the  defendant  was  at  liberty  to  retake  the 
property  by  virtue  of  his  former  levy.  I  concur  with  the 
opinion  expressed  in  this  case  (6  Hill  558)  "by  the  Supreme 


172  CASES  IN  THE  COURT  OF  APPEALS. 


Burlcle  r.  Luce. 


Court  that  if  he  could  not  regain  possession  peaceably,  he 
might  after  a  demand,  bring  trover  or  replevin  against  the 
executors,  or  against  any  one  else  who  had  acquired  no  rights 
under  Mrs.  Seitz  while  the  action  was  pending,  or  under  her 
representation  afterwards.  Upon  the  operation  of  these  prin- 
ciples no  one  is  exposed  to  sustain  any  injury,  for  if  the  de- 
fendant retakes  the  goods,  a  remedy  is  open  to  the  plaintiffs 
representatives  to  test  the  right  by  suit,  but  the  principle  for 
which  the  plaintiffs  contend,  would  without  any  remedy  work 
a  wrong.  The  defendant  as  Sheriff  is  justly  entitled  to  the 
goods  for  the  satisfaction  of  the  execution  in  his  hands  under 
which  he  first  seized  them,  and  has  no  remedy  either  by  judg- 
ment, or  upon  the  replevin  bond.  If  his  lien  did  not  thereby 
revive,  by  which  he  could  retake  or  sue  for  the  goods  in  case 
they  were  withheld  from  him  by  the  representatives  of  the 
plaintiff,  he  would,  although  he  had  an  indisputable  right  to 
the  goods,  be  without  any  remedy. 

It  is  objected  by  the  plaintiffs,  that  the  Circuit  Judge  erred 
in  refusing  to  charge  the  jury  in  respect  to  the  question  of 
fraud  as  requested;  I  am  unable  to  see  any  ground  for  the 
objection ;  he  left  the  whole  question  to  them  with  proper  in- 
structions as  to  the  law  of  the  case,  not  indeed  in  the  language 
of  the  request,  but  in  a  manner  as  I  think  better  calculated  to 
enable  the  jury  rightly  to  comprehend  the  question  and  their 
duty  and  province. 

The  execution  in  favor  of  Rathbun  against  Burkle  was 
properly  received  in  evidence.  It  was  a  substitute  for  the 
original  ordered  to  be  issued  by  the  Supreme  Court.  There 
was  no  necessity  of  proving  the  loss  of  the  original  execution 
upon  the  trial  in  order  to  give  in  evidence  its  substitute.  This 
substitute  was  admissible  as  primary  evidence,  and  therefore  it 
is  unnecessary  to  decide  whether  a  proper  foundation  was  laid 
for  its  admission  as  secondary  evidence.  (Jackson  vs.  Jlam- 
mon,  1  Cairn.  11.  496  ;  White  vs.  Lovejoy,  3  Johns.  R.  448  ; 
Love  vs.  Little,  17  Johns.  R.  34G ;  Chichester  vs.  Cande,  3 
Cow.  Rep  39.) 


ALBANY,  JANUARY,  1848. 


Adams  v.  The  People. 


173 


There  is  no  error  in  the  judgment  of  the  Supreme  Court 
and  it  should  be  affirmed. 

Judgment  affirmed. 


ADAMS  vs.  THE  PEOPLE. 

A.  was  indicted  in  the  city  of  New  York  for  obtaining  money  from  a  firm  of  Com- 
mission Merchants,  in  that  city,  by  exhibiting  to  them  a  fictitious  receipt  signed 
by  a  forwarder  in  Ohio,  falsely  acknowledging  the  delivery  to  him  of  a  quantity 
of  produce  for  the  use  of  and  subject  to  the  order  of  the  firm.  The  defendant 
pleaded  that  he  was  a  natural  bora  citizen  of  Ohio,  had  always  resided  there, 
and  had  never  been  within  the  State  of  New  York ;  that  the  receipt  was  drawn 
and  signed  in  Ohio,  and  the  offence  was  committed  by  the  receipt  being  present- 
ed to  the  firm  in  New  York,  by  an  innocent  agent  of  the  defendant,  employed 
by  him  while  he  was  a  resident  of  and  actually  within  the  State  of  Ohio ;  held, 
that  the  plea  was  bad,  and  that  the  defendant  was  properly  indicted  in  the  city 
of  New  York. 

Where  an  offence  is  committed  within  this  State  by  means  of  an  innocent  agent, 
the  employer  is  guilty  as  a  principal,  though  he  did  no  act  in  this  State,  and  was 
at  the  time  the  offence  was  committed,  in  another  State. 

In  such  case  the  Courts  of  this  State  have  jurisdiction  of  the  offence,  and  if  the 
offender  comes  within  the  limits  of  the  State,  they  have  also  jurisdiction  of  his 
person,  and  he  may  be  arrested  and  brought  to  trial. 

Where  an  offence  is  committed  within  this  State,  whether  the  offender  be  at  the 
time  within  the  State,  or  be  without  the  State  and  perpetrates  the  crime  by 
means  of  an  innocent  agent,  it  is  no  answer  to  an  indictment  that  the  offender 
owes  allegiance  to  another  State  or  sovereignty. 

ERROR  from  the  Supreme  Court.  Adams  and  one  Seymour 
were  indicted  in  the  New  York  General  Sessions  for  obtaining 
money,  by  false  pretences,  of  Suydam,  Sage  &  Co.,  Commis- 
sion Merchants  in  the  city  of  New  York.  The  pretence  used 
to  effect  the  fraud,  was,  as  the  indictment  alledged,  a  false  re- 
ceipt signed  by  Seymour,  dated  at  Chillicothe,  Ohio,  ac- 
knowledging that  he  (Seymour)  had  received  from  Adams  a 
large  quantity  of  pork  and  lard,  irrevocably  subject  to  the 
order  of  Suydam,  Sage  &  Co.,  which,  by  the  same  receipt,  he 
agreed  to  forward  to  them  in  New  York,  and  which  they  were 

O 

to  receive  for  sale  on  commission,  and  to  have  a  lien  upon  for 


173 

s      HA    365 

2  1  15 

83  '453 

d!72        Mftf 


174  CASES  IN  THE  COURT  OF  APPEALS. 


Adams  r.  The  People. 


the  amount  Df  certain  drafts  drawn  upon  them  by  Adams 
against  the  property.  The  indictment  alledged  that  the  re- 
ceipt was  untrue,  that  Seymour  had  received  no  such  proper- 
ty, and  that  the  defendants  knew  it ;  also  that  Suydam,  Sage 
&  Co.,  upon  the  faith  of  the  receipt,  and  the  representations 
accompanying  the  same,  accepted  and  paid  the  drafts. 

Adams  pleaded  to  the  indictment,  in  substance,  that  he  was 
born  in  Ohio,  that  he  had  always  resided  in  that  State,  and 
had  never  been  within  the  territorial  limits  of  the  State  of 
New  York ;  that  the  false  receipt  and  the  drafts  mentioned 
in  the  indictment,  were  made  and  signed  in  the  State  of  Ohio, 
and  were  presented  to  Suydam,  Sage  &  Co.,  in  New  York,  by 
an  innocent  agent  of  him,  the  said  Adams,  whereby  they  were 
dece'^ed  and  defrauded,  as  alledge-1  in  the  indictment,  and 
therefore  the  plea  insisted  that  he  the  said  Adams,  ought  not 
to  be  criminally  questioned  or  proceeded  against  in  the  State 
of  New  York. 

On  demurrer  to  this  pica,  the  Sessions  gave  judgment  in 
favor  of  the  defendant,  and  the  people  removed  the  cause,  by 
writ  of  error,  into  the  Supreme  Court,  where  the  judgment 
was  reversed,  and  the  defendant  ordered  to  further  answer  the 
indictment.  Sec  3  Denio  190,  where  the  pleadings  are 
stated  more  in  detail,  and  the  arguments  of  counsel  given  at 
length. 

G-eo.  Wood,  for  plaintiff  in  error. 

Ogden  Hoffman,  and  John  MeKeon,  for  the  people. 

GARDINER,  J.  No  attempt  was  made  upon  the  argument 
to  controvert  the  reasoning  of  the  learned  Judge  who  deliv- 
ered the  opinion  of  the  Supreme  Court  upon  the  premises 
assumed  by  him.  It  was  however  insisted,  that  the  authority 
to  punish  on  account  of  crimes  committed  within  the  jurisdic- 
tion of  this  State,  depended  upon  the  right  of  the  State  to 
the  obedience  of  the  criminal,  and  that  the  authority  upon 
the  one  hand  and  the  duty  upon  the  other,  was  founded  upon 


ALBANY,  JANUARY,  1848.  175 


Adams  v.  The  People. 


the  allegiance  permanent  or  temporary,  which  the  offender 
owed  to  the  country  within  which  the  crime  was  committed. 

It  was  therefore  admitted  that  a  crime  had  been  committed 
within  this  State  and  through  the  instrumentality  of  the  de- 
fendant, and  the  authority  of  the  numerous  cases  cited  to 
establish  the  position,  the  actual  presence  of  the  offender 
at  the  place  where  the  crime  was  consummated  was  not  neces- 
sary to  make  him  amenable  to  the  law,  was  also  conceded ; 
but  it  was  urged  that  they  were  adjudications  in  cases  between 
sovereign  and  subject  in  reference  to  the  municipal  law  of 
the  country  in  which  they  arose,  and  that  they  did  not  touch 
the  great  question  of  allegiance  which  was  anterior  and  para- 
mount to  any  municipal  regulation.  No  direct  authority  was 
referred  to  establishing  this  doctrine.  We  must  therefore 
consider  it  as  it  was  argued,  as  a  question  depending  upon 
general  principles. 

Allegiance  binds  the  citizen  to  the  observance  of  all  laws 
which  are  promulgated  by  his  own  sovereign,  not  inconsistent 
with  the  laws  of  nature.  The  laws  of  nature  as  they  are  de- 
nominated also  rightfully  require  obedience,  not  by  reason  of 
allegiance,  but  because  they  emanate  from  a  higher  authority 
than  any  human  government.  They  are  written  upon  the 
hearts  of  all  men ;  exist  before  governments  are  organized ; 
anterior  of  course  to  allegiance,  "  and  are  binding  all  over 
the  globe,  in  all  countries  and  at  all  times." 

To  these  laws  all  men  owe  obedience,  not  because  they  are 
subjects,  but  because  they  are  men. 

Allegiance  itself  is  modified  and  controlled  by  them. 

Every  political  and  civil  power  has  its  legal  limits,  no  man 
is  bound  to  do  any  act  contrary  to  the  law  of  nature  at  the 
bidding  of  his  sovereign.  ( Vattel.  B.,  1  Oh.  4  §  53-4.) 

The  positive  regulations  of  particular  communities,  such  as 
their  revenue  and  usury  laws,  indeed  the  whole  class  of  regu- 
lations which  render  acts  in  themselves  indifferent,  criminal 
by  prohibition,  may  to  some  extent  derive  their  obligation 
from  the  doctrine  of  allegiance — and  may  therefore  be  bind- 
ing only  upon  the  citizens  and  residents  of  that  community. 


176  CASES  IN  THE  COURT  OF  APPEALS. 


Adams  v.  The  People. 


But  this  is  not  so  in  reference  to  the  higher  laws  to  which 
I  have  adverted.  The  duty  of  obedience  does  not  depend 
upon  the  allegiance  of  the  subject,  or  the  laws  of  his  sover- 
eign, bnt  is  assumed  as  pre-existing. 

The  citizen  of  Massachusetts  who  should  murder  an  inhabi- 
tant of  this  State  by  the  discharge  of  a  loaded  pistol  or  by 
striking  with  a  deadly  weapon  across  the  invisible  line  which 
separates  the  territory  of  the  two  States,  would  transgress  a 
law  universally  binding  and  recognised  as  such  by  the  citizens 
of  both  States.  If  it  be  admitted  as  contended  for  by  the 
counsel  for  the  prisoner  that  the  offender  would  not  violate  his 
allegiance  to  his  own  State,  he  would  not  be  the  less  guilty 
on  that  account.  He  would,  notwithstanding,  infringe  a  law 
he  was  under  an  obligation  to  obey,  at  all  times  and  in  all 
places,  in  New  York  as  well  as  in  Massachusetts. 

In  a  word,  where  the  law  of  nature  prohibits  an  act  as 
•riminal,  it  is  the  province  of  the  municipal  law  of  each  State 
to  prescribe  the  means  by  which  the  crime  is  to  be  ascertain- 
ed and  the  punishment  to  be  inflicted  upon  the  offender. 

This  right  is  indispensable  to  enable  a  State  to  discharge 
the  duty  of  protecting  its  own  citizens.  It  is  also  exclusive  : 
*•  The  jurisdiction  of  a  nation  within  its  own  territory,"  says 
Chief  Justice  Marshall,  "  is  necessarily  exclusive  and  absolute 
n  nd  the  jurisdiction  of  its  Courts  is  a  branch  of  that  sover- 
eignty." 

If  a  citizen  is  injured  in  his  person  or  property  by  a  for- 
eign government  or  their  avowed  agents,  redress  may  be 
.-ought  through  his  own  sovereign,  and  if  refused  it  would  be 
a  cause  for  war.  But  when  tho  injury  arises  from  the  fraud 
or  malice  of  a  private  citizen,  with  whom  or  his  acts  his  gov- 
ernment has  no  connection,  and  the  offence  is  consummated  in 
the  State  of  which  the  aggrieved  party  is  a  subject,  no  pro- 
tection can  be  afforded  except  by  the  punishment  of  tho 
offender  if  found  within  its  limits.  The  aggrieved  person 
eannot  make  reprisals,  and  the  government  of  the  offender  is 
no  more  responsible  for  the  tortious  act  of  a  private  citizen 
than  fur  his  contracts.  Protection  therefore  the  "  return"  or 


ALBANY,  JANUARY,  1848.  177 

Adams  v.  The  People. 

consideration  upon  the  part  of  the  State  for  the  obedience  of 
the  subject,  cannot  be  secured  at  all  upon  the  assumption  that 
allegiance  is  the  only  ground  of  jurisdiction  over  the  criminal. 
The  right  to  punish  therefore  it  is  believed,  obtains  in  all 
cases  where  a  law  has  been  violated  to  which  the  offender 
owes  obedience  ;  and  secondly,  where  the  offence  is  committed 
within  the  territory  of  the  State  claiming  jurisdiction. 

Piracy  which  is  sometimes  claimed  as  an  exception,  only 
confirms  the  general  rule.  Piracy  is  an  offence  against  the 
law  of  nature,  which  is  in  this  respect  the  law  of  nations. 
(Story's  Comm.  3  Vol.  Chap.  22  §  1153.)  A  pirate  who  is  one 
by  the  law  of  nations  may  be  punished  in  any  country  where 
he  may  be  found.  Why  ?  Because  he  has  transgressed  a 
law  which  he  was  bound  to  obey  ;  and  secondly,  because  the 
offence  was  committed  in  a  place  in  which  all  nations  have  a 
common  right,  but  over  which  no  one  has  exclusive  jurisdic- 
tion. Each  nation  therefore  must  have  the  right  to  punish  or 
none ;  and  the  right  is  conferred  upon  each  to  prevent  the 
escape  of  the  offender. 

Allegiance  to  a  particular  power,  so  far  from  drawing  after 
it  the  exclusive  jurisdiction  to  try  and  punish,  is  not  even  one 
of  the  elements  necessary  to  confer  it.  A  Pirate  born  in 
England  where  the  crime  is  recognized  and  punished  by  the 
common  law,  (4  Black.  Comm.  72)  may  be  convicted  and 
sentenced  in  the  Courts  of  the  United  States  or  those  of  any 
other  nation. 

If  a  State  may  punish  a  foreigner  who  owes  it  no  allegi- 
ance for  acts  committed  on  the  highway  of  nations,  there 
would  seem  to  be  no  doubt  of  its  jurisdiction  when  the  offence 
was  committed  by  any  means  within  its  own  territory.  Kob- 
bery  upon  land  is  as  much  opposed  to  the  law  of  nature,  aa 
robbery  upon  the  high  seas.  In  each  case  the  individual  for- 
feits the  protection  of  hia  government,  and  the  difference  of 
jurisdiction  in  the  two  cases  is  attributable  to  the  right  of  do- 
main, and  not  to  the  doctrine  of  allegiance.  Vattel  says  that 
"  the  sovereign  who  is  injured  by  the  subjects  of  another  na- 
tion, takes  satisfaction  for  the  offence  himself  when  he  meets 

23 


178  CASES  IN  THE  COURT  OF  APPEALS. 

Adams  v.  The  People. 

with  the  delinquents  in  his  own  territory,  or  in  a  free  place  aa 
the  open  sea."  (Book  4,  Ch.  4,  §  52.)  And  again,  after  re- 
marking that  it  would  be  unjust  to  impute  to  the  sovereign 
every  fault  committed  by  a  subject  against  a  citizen  of  another 
country,  he  says,  "if  the  offended  State  has  in  her  power  the 
individual  who  has  done  the  injury,  she  may,  without  scruple, 
bring  him  to  justice  and  punishment."  (Boole  2,  Ch.  6,  §  75.) 

In  this  case  the  prisoner  admits  that  by  means  of  false  pre- 
tences, and  with  an  intent  feloniously  to  cheat  and  defraud, 
he  obtained,  from  citizens  of  this  State,  the  sum  of  $28,000 
through  the  instrumentality  of  innocent  agents.  And  it  ap- 
pears that  afterwards  he  voluntarily  came  within  the  territory 
of  the  State  where  the  crime  was  committed. 

I  think  he  may  be  rightfully  punished.     He  has  violated  a 
law  to  which  he  owed  obedience,  for  it  was  written  upon  his 
own  conscience,  and  obligatory  everywhere.     To  that  law  the< 
statute  of  this  State  has  affixed  a  penalty,  to  be  enforced  in 
her  own  tribunals  for  the  protection  of  her  own  citizens. 

The  immunity  he  enjoyed  at  home  from  arrest  and  punish- 
ment, was  not  due  to  him  as  a  criminal,  or  as  a  citizen  of  Ohio, 
but  because  he  had  injured  no  one  whom  that  State  was  bound 
to  protect,  and  because  the  inviolability  of  its  territory  was  an 
essential  to  its  sovereignty  and  independence.  The  prisoner 
knew  that  through  his  agent  he  was  defrauding  those  who 
were  entitled  to  the  protection  of  our  laws,  and  he  cannot  be 
permitted  to  say  that  he  did  not  know  that  it  was  unlawful  to 
cheat  in  New  York  as  well  as  in  Ohio. 

BRONSON,  J.  As  I  have  not  found  time  to  write  out  an 
opinion,  I  shall  content  myself  with  stating  the  conclusions 
at  which  I  have  arrived. 

That  a  crime  has  been  committed  within  this  State,  and  by 
the  defendant  is  not  denied  by  his  counsel.  But  they  insist 
that  he  cannot  be  punished  here,  because  he  was  a  citizen  of 
Ohio,  and  owned  no  allegiance  to  this  State.  I  am  of  opin- 
ion that  it  is  not  a  matter  of  any  importance  whether  the  de- 
fendant owed  allegiance  to  this  State  or  not.  It  does  not 


ALBANY,  JANUARY,  1848.  179 

Adams  v.  The  People. 

occur  to  me  that  there  are  more  than  two  cases  where  the 
question  of  allegiance  can  have  anything  to  do  with  a  crim- 
inal prosecution.  First,  where  the  accused  is  charged  with  a 
breach  of  the  duty  of  allegiance,  as  in  cases  of  treason ;  and 
second,  where  the  government  proposes  to  punish  offences 
committed  by  its  own  citizens  beyond  the  territorial  limits  of 
the  State.  When  the  offence,  not  being  treason,  is  committed 
within  this  State,  the  question  of  allegiance  has  nothing  to  do 
with  the  matter. 

It  is  not  necessary  to  notice  the  peculiar  relation  which  a 
citizen  of  one  of  the  United  States  sustains  to  the  other  States ; 
for  if  a  subject  to  the  British  Crown,  while  standing  on  Bri- 
tish soil  in  Canada,  should  kill  a  man  in  this  State,  by  shoot- 
ing or  other  means,  I  entertain  no  doubt  that  he  would  be 
subject  to  punishment  here,  whenever  our  courts  could  get 
jurisdiction  over  his  person. 

This  leads  me  to  say,  that  it  is  not  necessary  to  inquire 
how  the  criminal  can  be  arrested  or  whether  he  can  be  arrest- 
ed at  all.  If  our  courts  cannot  get  jurisdiction  over  his  per- 
son, they  cannot  try  him.  But  that  is  no  more  than  happens 
when  a  citizen,  who  has  committed  an  offence  within  the 
State,  escapes,  and  cannot  be  found.  Jurisdiction  of  the 
offence,  or  subject  matter,  and  jurisdiction  to  try  the  offender, 
are  very  different  things.  The  first  exists  whenever  the  of- 
ence  was  committed  within  this  State  ;  and  the  second,  when 
the  offender  is  brought  into  Court,  and  not  before.  And  this 
is  so,  whether  he  be  a  citizen  or  not. 

I  am  of  opinion  that  the  judgment  of  the  Supreme  Court 
should  be  affirmed. 

Judgment  affirmed. 


180 


CASES  IN  THE  COURT  OF  APPEALS. 


Charles  v.  The  People. 


180 

8  HA  359 

27  '333 

73  '476 

e82  '448 

87  '435 

94  '143 


CHARLES  impleaded  with  MC!NTYRE  vs.  THE  PEOPLE. 

Under  the  Revised  Statutes  (1  R.  S.  665,  §  28)  it  is  a  misdemeanor  to  publish  IB 
this  State  an  account  of  a  lottery  to  be  drawn  in  another  State  or  Territory, 
although  such  lottery  be  authorized  by  the  laws  of  the  place  where  it  is  to  be 
drawn. 

Accordingly  field  that  a  demurrer  to  an  indictment  which  charged  the  defendant 
with  publishing,  in  the  city  of  New  York,  an  account  of  a  lottery  to  be  drawn 
in  the  District  of  Columbia,  was  not  well  taken. 

Where  the  indictment  charged  the  defendant  with  publishing  an  account  of  an 
illegal  lottery,  and  set  forth  in  Jiaec  verba  the  lottery  scheme,  which  shewed  th.it 
the  prizes  consisted  of  sums  of  money  ;  held  good,  although  it  was  not  other- 
wise averred  that  the  lottery  was  set  on  foot  for  the  purpose  of  disposing  of 
money,  land,  &c. 

Charles  and  Mclntyre  were  indicted  at  the  New  York  Ge- 
neral Sessions  for  publishing  an  account  of  an  illegal  lottery. 
The  indictment  charged  that  the  defendants  on,  &c.,  at  the 
fourth  ward  of  that  city,  in  a  newspaper  called  the  "  Wall 
Street  Reporter,"  published  an  account  of  a  certain  illegal 
lottery,  stating  when  the  same  was  to  be  drawn,  and  where 
tickets  were  to  be  had,  together  with  the  prizes  therein.  It 
then  set  forth  the  account  so  published,  in  Jiaec  verba,  from 
which  it  appeared  that  the  prizes  were  of  various  sums  of 
money,  and  were  to  be  decided  by  the  numbers  drawn  from 
the  wheel  of  the  Alexandria  Lottery,  to  be  drawn  at  Alexan- 
dria, in  the  District  of  Columbia.  The  indictment  did  not 

\ 

shew,  otherwise  tban  by  setting  forth  the  published  account, 
that  the  lottery  was  set  on  foot  for  any  of  the  purposes  for- 
bidden by  the  statute.  (1  1L  &  CG5,  §  27.)  The  defendant 
Charles  put  in  a  demurrer,  which  was  overruled  by  the  Ses- 
sions, and  judgment  given  for  the  people.  The  Supreme 
Court,  upon  writ  of  error,  affirmed  the  judgment,  and  tbe  de- 
fendant brings  error  to  this  Court. 

C.  C.  Egan,  for  plaintiff  in  error.  1.  The  statute  only 
prohibits  the  publication  of  a  lottery  scheme  which  is  set  on 
foot  within  this  State,  and  therefore  the  facts  charged  in  the 


ALBANY,  JANUARY,  1848.  181 

Charles  v.  The  People. 

indictment  constitute  no  offence.  2.  The  statute  requires 
that  the  lottery  shall  be  established  for  "  the  purpose  of  ex- 
posing, setting  to  sale,  or  disposing  of  houses,  lands,  money, 
or  goods,  or  things  in  action,"  and  the  indictment  is  defective 
in  not  alleging  that  the  lottery  was  set  on  foot  for  these 
purposes. 

John  McKeon,  for  the  people. 

WRIGHT,  J.  By  the  26th  section  of  article  four,  title  eight, 
and  chapter  twenty,  of  the  first  part  of  the  Revised  Statutes, 
every  lottery,  game  or  device  of  chance  in  the  nature  of  a 
lottery,  other  than  such  as  have  been  authorized  by  law,  is 
declared  to  be  "unlawful  and  a  common  and  public  nuisance." 
The  27th  section  of  the  same  article,  makes  it  a  misdemeanor 
for  any  person,  unauthorized  by  special  laws  for  that  pur- 
pose," within  this  state,  to  open,  set  on  foot,  carry  on,  pro- 
mote or  draw,  publicly  or  privately,  any  lottery,  game  or 
device  of  chance  of  any  nature  or  kind,  or  by  whatever  name 
it  may  be  called,  for  the  purpose  of  exposing,  setting  to  sale, 
or  disposing  of  any  houses,  lands,  tenements,  or  real  estate, 
or  any  money,  goods  or  things  in  action."  The  28th  section 
is  as  follows :  "  No  person  shall  by  printing,  writing,  or  in 
any  other  way,  publish  an  account  of  any  such  illegal  lottery 
stating  when  or  where  the  same  is  to  be  drawn,  or  the  prizes 
therein,  or  any  of  them,  or  the  price  of  a  ticket  or  share 
therein,  or  where  any  ticket  may  be  obtained  therein,  or  in 
any  way  aiding  or  assisting  in  the  same.  Whoever  offends 
against  this  provision  shall  be  deemed  guilty  of  a  misde- 
meanor," &c. 

In  1830,  when  the  Revised  Statutes  went  into  operation, 
there  were  special  laws  in  existence  authorizing  within  the 
State,  certain  lotteries.  This  fact  explains  the  reason  for  the 
exceptions  in  the  26th  and  27th  sections  above  cited.  But  in 
1833,  the  legislature  provided  that  after  the  close  of  that 
year,  "it  should  not  be  lawful  to  continue  or  draw  any  lottery 
within  this  State,  but  all  and  every  lottery  before  granted  or 


182  CASES  IN  THE  COURT  OF  APPEALS. 

Charles  v.  The  People. 

authorized  should  absolutely  cease  and  determine."  (Laws  of 
1833,  p.  484.)  Therefore,  since  the  end  of  the  year  1833, 
all  lotteries  have  been  unauthorized  and  contrary  to  law,  and 
the  sections  of  the  Revised  Statutes  referred  to  above  should 
be  read  as  though  the  words,  "  other  than  such  as  have  been 
authorized  by  law,"  in  the  26th  section,  and  the  words  "  un- 
authorized by  special  laws  for  that  purpose,"  in  the  27th  sec- 
tion, were  stricken  therefrom. 

It  is  insisted  by  the  plaintiff  in  error  :  First,  That  the  facts 
charged  in  the  indictment  do  not  constitute  an  offence  against 
the  laws  of  this  State,  because  the  publication  charged  was  of 
a  foreign  lottery,  and  the  statute  does  not  make  such  publi- 
cation an  offence.  Second,  That  the  indictment  is  defective 
in  not  averring  that  the  lottery  was  one  "  for  the  purpose  of 
exposing,  setting  to  sale,  or  disposing  of"  property  or  money 
according  to  the  description  contained  in  the  27th  section. 
Both  of  these  points  will  be  met  in  a  decision  of  the  question, 
whether  the  words,  "any  such  illegal  lottery,"  in  the  28th 
section,  refer  to  and  point  out  only  the  particular  kind  of  lotte- 
ry or  lotteries  described  in  the  27th  section,  or  whether  they 
properly  refer  both  to  the  26th  and  27th  sections  which  in- 
clude all  lotteries  ;  for  if  the  "illegal  lottery"  spoken  of  in 
the  28th  section  be  only  that  described  in  the  27th,  and  it  is 
conceded  that  the  publication  was  of  a  foreign  lottery,  there 
is  no  offence  charged  against  the  laws  of  this  State,  as  the 
27th  section  describes  a  lottery  to  be  opened,  set  on  foot,  car- 
ried on,  promoted  or  drawn,  within  this  State,  for  specified 
purposes  ;  and  had  the  publication  been  of  a  lottery  of  this 
State,  the  indictment  would  have  been  defective  in  not  aver- 
ring the  purpose  for  which  the  lottery  was  set  on  foot,  &c. 
So,  also,  by  the  26th  and  27th  sections,  all  lotteries  being 
"unlawful  and  common  and  public  nuisances,"  as  far  as  there 
may  be  attempts  to  carry  them  on  in  the  State,  if  the  term 
"such  illegal  lottery,"  is  meant  to  embrace  all  lotteries,  made 
so  by  both  sections,  then  the  facts  charged  in  the  indictment 
do  constitute  an  offence  against  our  laws,  and  no  special  aver- 
ment of  the  purpose  of  the  lottery  is  necessary,  but  the  general 


ALBANY,  JANUARY,  1848.  183 

Charles  v.  The  People. 

averment  of  publication  would  be  sufficient ;  for  tlie  28th  sec- 
tion, under  which  the  indictment  is  framed,  then  makes  it  a  mis- 
demeanor to  publish  an  account  of  any  lottery,  game  or  device 
of  chance  in  the  nature  of  a  lottery  for  any  purpose  whatever. 
It  is  contended  that  the  offence  prescribed  by  the  28th  sec- 
tion is  only  that  described  in  the  27th,  of  "printing,  writing 
or  publishing  an  account"  of  a  lottery  set  on  foot,  within  this 
/State,  for  the  purpose  of  "exposing,  setting  to  sale  or  dispos- 
ing of"  property  or  money.  If  this  be  so,  though  the  giving 
notice  of  a  lottery  set  on  foot  and  to  be  drawn  in  the  District 
of  Columbia  is  within  the  mischief  and  against  the  policy  in- 
dicated by  the  27th  section,  yet  not  being  an  act  malum  in 
se  nor  in  contravention  of  positive  law,  it  is  not  criminally  pun- 
ishable. But  I  am  of  a  different  opinion.  I  think  that  the 
words,  "  such  illegal  lottery,"  relate  not  solely  to  the  particular 
kind  described  in  the  27th  section,  but  to  all  lotteries  ;  as  all 
are  by  the  26th  section  declared  to  be  "  unlawful  and  common 
and  public  nuisances."  Such  is  the  relation  given  by  the  Su- 
preme Court  to  similar  words  in  the  29th  section  respecting 
the  sale  of  tickets.  (People  vs.  Sturdevant,  23  Wend.  R.  418.) 
If  the  phrase,  "such  illegal  lottery"  in  the  28th  section  were 
necessarily  qualified  by  the  description  in  the  27th  section, 
and  by  no  reasonable  construction  of  language  could  relate 
to  the  26th,  I  should  not  feel  justified  in  an  attempt  to  give 
it  such  relation.  Though  the  mischief  be  as  great  to  publish 
an  account  of  a  foreign  as  of  a  domestic  lottery,  it  is  for  the 
legislature  to  determine  whether  one  or  both  acts  shall  be 
a  misdemeanor ;  and  it  is  not  for  courts  by  a  strained  con- 
struction of  language,  or  by  an  adoption  of  a  false  relation  of 
words  to  each  other  or  to  the  preceding  sentences,  to  create  a 
criminal  offence  not  obviously  within  the  letter  or  meaning  of 
the  statute.  But  for  ought  that  I  can  discover,  the  phrase 
"  such  illegal  lottery,"  in  the  28th  section  may  as  aptly  relate 
to  all  lotteries,  which  by  the  26th  section  are  declared  to  be 
unlawful,  as  to  the  particular  description  of  lottery  which  the 
27th  section  makes  specially  an  offence  to  open,  set  on  foot, 
carry  on,  promote  or  draw  ;  and  if  the  impediment  I  have 


184  CASES  IN  THE  COURT  OF  APPEALS. 


Charles  v.  The  People. 


suggested  to  such  construction  does  not  really  exist,  and  the 
words  may  as  well  relate  to  the  descriptions  in  the  26th  sec- 
tion which  embraces  all  lotteries,  as  to  the  27th  which  includes 
only  a  particular  kind,  it  would  certainly  be  erroneous,  in  view 
of  the  fact  that  the  mischief  which  the  law  intended  to  pre- 
vent is  the  same  by  the  publication  of  an  account  of  a  foreign 
as  of  a  domestic  lottery,  to  narrow  or  limit  the  offence  pre- 
scribed in  the  28th  section,  to  the  publication  of  an  account  of 
a  lottery  set  on  foot,  within  this  State,  for  specified  purposes. 

I  think  that  by  printing,  writing,  or  in  any  other  way  to 
publish  an  account  of  any  lottery,  "stating  when  or  where  the 
same  is  to  be  drawn,  or  the  prizes  therein,  or  any  of  them,  or 
the  price  of  a  ticket  or  shares  therein,  or  where  any  ticket  may 
be  obtained  therein,  or  in  any  way  aiding  or  assisting  in  the 
same,"  is  an  offence  under  the  28th  section  of  the  statute, 
and  that  consequently  a  general  averment  in  the  indictment 
of  publication  is  sufficient. 

The  judgment  of  the  Supreme  Court  should  therefore  be 
affirmed. 

BnoNSON,  J.  The  defendant  insists  that  our  lottery  act 
does  not  forbid  the  publishing  an  account  of  any  lottery,  ex- 
cept such  as  are  opened,  set  on  foot,  or  drawn  within  this 
State.  (1  R.  S.  G65,  §  28.)  He  makes  the  word  "such," 
in  the  28th  section,  refer,  among  other  things,  to  the  words 
"  within  this  State,"  in  the  27th  section.  But  the  words 
"  within  this  State,"  as  there  used,  neither  add  nor  take  away 
any  thing  from  the  force  of  the  section.  Our  Legislature  has 
no  extra-territorial  jurisdiction ;  and  when  it  forbids,  in  un- 
qualified terms,  the  doing  of  an  act,  it  must  always  be  under- 
stood that  the  thing  is  only  forbidden  within  this  State.  The 
Legislature  has  in  this  instance  only  expressed  \vliat  is  usually 
left  to  implication.  The  words  "  such  illegal  lottery,"  in  the 
28th  section,  refer  to  lotteries  for  disposing  of  money  or  pro- 
perty, which  had  not  been  authorized  by  tlic  laws  of  this 
State  ;  and  all  other  gaming  lotteries  are  illegal  here,  though 
they  may  have  been  authorized  by  the  laws  of  other  States. 


ALBANY,  JANUARY,    1818  185 

Charles  v.  The  People. 

This  point  was  decided  in  The  People  vs.  Sturdevant,  (23 
Wend.  418  ;)  and  I  see  no  reason  for  questioning  the  authori- 
ty of  that  case.  (See  also,  Commonwealth  vs.  Dana,  2  Mete. 
329,  338.) 

The  indictment  does  not  directly  and  expressly  allege  that 
the  lottery,  of  which  the  defendants  published  an  account, 
was  opened  or  set  on  foot  for  the  purpose  of  disposing  of 
money  or  other  property.  (The  People  vs.  Payne,  3  Denio 
88.)  But  that  fact  appears  from  the  advertisement  itself, 
which  is  set  out  at  large  in  the  indictment :  and  according  to 
the  decision  in  The  People  vs.  Rynders,  (12  Wend.  425,)  this 
is  good  pleading,  even  in  a  criminal  case.  Although,  as  an 
original  question,  I  should  probably  have  come  to  a  different 
conclusion,  I  am  content  to  follow  the  authority  of  that  case. 

I  am  of  opinion  that  the  judgment  of  the  Supreme  Court 
should  be  affirmed. 

24  Judgment  affirmed. 


186 


CASES  IN  THE  COURT  OF  APPEALS 


Coddington  v.  Davis. 


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73 


CODDINGTON  vs.  DAVIS  and  others. 

Ii  a  strict  and  technical  sense,  the  term  protest  when  used  in  reference  to  com 
mercial  paper,  means  only  the  formal  declaration  drawn  up  and  signed  by  a 
Notary,  but  in  a  popular  sense  und  as  used  among  men  of  business,  it  includes 
all  the  steps  necessary  to  charge  an  endorser. 

Therefore,  where  an  endorser  of  a  note,  before  its  maturity,  wrote  to  the  holder, 
saying:  "Please  not  protest  T.  B.  C.'s  note  due,  dec.  &c.,  and  I  will  waive  the 
necessity  of  the  protest  thereof,"  held,  that  this  dispensed  with  a  demand  of  the 
maker  and  notice  to  the  endorser. 

A  demand  of  payment  from  the  maker  of  a  note,  and  notice  to  the  endorser,  are 
gutficient  to  charge  the  endorser,  without  a  technical  and  formal  protest. 

Where  two  instruments  are  executed  on  different  days,  relating  to  the  same  sub- 
ject matter,  and  the  one  last  executed  refers  to  and  is  based  upon  the  former 
one,  in  arriving  at  the  intention  of  the  parties  in  the  latter  instrument,  both 
should  be  read  and  construed  together  ;  and  the  general  words,  used  in  the  last, 
should  be  restricted  so  as  to  conform  to  the  intention  of  the  parties  as  derived 
from  an  examination  of  both  instruments. 

Accordingly,  where  the  maker  of  a  note  made  an  assignment  to  one  of  the  holders 
for  the  benefit  of  his  creditors,  in  which  the  endorser,  was  named  and  preferred 
as  a  creditor  to  the  amount  of  the  note,  and  the  holders  were  named  and  prefer- 
red as  creditors  on  another  account,  but  were  no  where  set  down  as  creditors 
in  respect  to  the  note,  and  the  holders  in  conjunction  with  other  creditors  after- 
wards executed  to  the  maker  an  instrument  referring  to  the  assignment,  and  agree- 
ing in  consideration  thereof,  and  of  one  dollar,  to  discharge  the  maker  from  nil 
claims  ami  demand.'!  existing  in  their  favor  respectively  against  him.  over  and 
above  what  they  might  realize  under  the  assignment,  on  his  agreeing  nl  the  same 
time  to  pay  the  balance  of  their  debts  in  seven  years,  and  the  maker  at  the  same 
time  gave  to  the  holders  his  written  promise  to  pay  such  balance  in  seven 
years  :  hfltl,  that  the  claim  of  the  holders  to  recover  the  note  of  the  maker  was 
not  discharged  or  suspended,  the  instrument  being  regarded  as  only  applicable 
to  their  other  demand  against  the  maker;  and  therefore  further  hell,  that  their 
right  to  recover  against  the  endorser  was  not  aflectcd  by  such  instrument. 

On  error  from  the  Supreme  Court.  Davis,  Brooks  &  Co. 
sued  Samuel  Coddington  in  the  Superior  Court  of  the  city  of 
New  York  as  the  endorser  of  a  promissory  note  for  $10,000, 
made  by  Thomas  B.  Coddington,  which  bore  date  Dec.  31, 
183'.),  and  became  due  Feb.  2,  1840.  On  the  trial  it  was 
proved  that  on  the  28th  of  January,  1840,  the  defendant 
wrote  to  the  plaintiffs  as  follows : 


ALBANY.  JANUARY,  1848.  187 

Coddington  v.  Davis. 

"  Messrs.  DAVIS,  BROOKS  &  Co. — GENTS.:  Please  not  pro- 
test T.  B.  Coddington's  note  due  2d  February,  1840,  for  ten 
thousand  dollars,  and  I  will  waive  the  necessity  of  the  protest 
thereof;  and  oblige,  Yours, 

SAM'L  CODDINGTON." 

The  plaintiffs  having  rested,  the  defendant  moved  for  a  non- 
suit on  the  ground  that  no  demand  of  the  maker  and  notice 
of  non-payment  to  the  endorser  had  been  proved.  The  Court 
held  that  the  above  letter  dispensed  with  the  necessity  of 
making  such  proof,  and  denied  the  motion.  The  defendant 
excepted. 

It  was  then  proved  on  the  part  of  the  defendant,  that  on 
the  23d  day  of  January,  1840,  the  maker  of  the  note  assign- 
ed his  property  to  one  Charles  Davis,  one  of  the  plaintiffs,  in 
trust  to  pay  his  debts,  preferring  certain  creditors  named  in 
schedule  A,  annexed  to  the  assignment.  The  assignment 
and  schedules  were  read  in  evidence,  from  which  it  appeared 
that  the  defendant  was  named  as  a  creditor  in  schedule  A  in 
the  sum  of  $10,000,  the  amount  of  the  note  in  question,  and 
in  two  other  sums  of  smaller  amount.  The  plaintiffs  were 
named  in  the  same  schedule  as  creditors  in  the  sum  of  $1000, 
and  in  schedule  B  in  two  other  sums  of  §1100  and  $900  ;  but 
they  were  no  where  named  as  creditors  in  respect  to  the  note 
in  question.  On  the  day  after  the  assignment  was  executed 
(January  24th)  the  defendant  drew  an  order  upon  the  assignee, 
in  favor  of  the  plaintiffs,  directing  him  to  pay  over  to  them 
all  monies  which  he  might  realize  out  of  the  fund  assigned  on 
account  of  the  defendant,  to  the  amount  of  $10,000.  This 
order  was  accepted  by  the  assignee,  and  in  pursuance  thereof 
he  had  paid  over -:  to  the  plaintiffs  previous  to  the  trial  about 
$2,800,  which  they  had  applied  to  the  note. 

On  the  8th  of  February  1840,  the  plaintiffs  and  other  credi- 
tors of  Thomas  B.  Cloddington  executed  to  him  an  instru- 
ment without  seal  in  these  words:  "Whereas.  Thomas  B. 
Coddington.  of  the  city  of  New  York,  is  indebted  or  liable  to 
us  for  certain  debts  or  liabilities  heretofore  incurred  by  said 
Coddington,  and  said  Coddington  has  made  an  assignment  -.-.{' 


188  CASES  IN  THE  COURT  OF  APPEALS. 

Coddinglon  r.  Davis. 

his  property  to  Charles  Davis,  Esq.  for  the  benefit  of  us  and 
other  creditors  of  said  Coddington ;  Now  in  consideration 
of  one  dollar  paid  to  us  by  said  Coddington,  the  receipt  of 
which  is  hereby  acknowledged,  and  in  consideration  of  said 
assignment  and  a  promise  on  the  part  of  said  Coddington 
hereinafter  mentioned,  We,  the  creditors,  whose  names  are 
hereunto  subscribed,  do  hereby  release,  discharge  and  forever 
acquit  said  Coddington,  his  executors,  &c.,  from  all  claims, 
demands,  liabilities,  engagements,  judgments,  and  other  re- 
sponsibilities now  existing  against  said  Coddington,  beyond 
what  we  shall  respectively  realize  of  said  claims,  &c.,  from 
said  assignment  to  Charles  Davis,  dated  the  23d  of  January, 
1840 ;  we  receiving  or  assenting  to  the  conditions  of  said  as- 
signment, and  coming  under  the  same  for  a  full  and  perfect 
discharge  of  said  claims,  &c.,  said  Thomas  B.  Coddington,  in 
consideration  of  the  above,  giving  us  severally  a  written  pro- 
mise to  pay  us  at  the  expiration  of  seven  years  from  the  date 
of  this  instrument,  whatever  balance  of  said  claims  should  re- 
main unpaid,  out  of  the  assets  of  said  assignment.  Witness 
our  hands,  this  eighth  day  of  February,  1840. 

Signed  by  Davis,  Brooks  &  Co.,  and  by  other  creditors. 

Simultaneously  with  the  execution  of  the  above  instrument 
Thomas  B.  Coddington  executed  to  the  plaintiffs  the  written 
promise  therein  referred  to,  in  these  words :  "I  hereby  pro- 
mise to  pay  Messrs.  Davis,  Brooks  &  Co.  whatever  they  may 
not  realize  from  my  assignment  to  Mr.  Charles  Davis,  on  ac- 
count of  my  indebtedness  to  them,  in  notes,  books,  accounts, 
endorsements,  or  otherwise  at  the  expiration  of  seven  years 
from  the  date  hereof.  THOMAS  B.  CODDINGTON." 

"New  York  Feb.  8,  1840." 

The  above  matters  being  given  in  evidence,  the  defendant's 
counsel  insisted,  that  the  written  instrument  of  the  8th  of  Feb- 
ruary, was  a  valid  release  and  discharge  of  the  maker  of  the 
note,  and  that  thereby  the  defendant,  the  endorser,  was  dis- 
charged from  his  liability.  Also  that  said  written  instrument 
in  connection  with  the  maker's  promise  to  pay  any  balance, 
&c.,  in  seven  years,  was  a  valid  extension  of  time  to  the 


ALBANY,  JANUARY,  1848.  189 


Coddington  v.  Davis. 


maker  of  the  note,  which  discharged  the  endorser.  Also  that 
the  plaintiffs  having  by  said  instrument  agreed  to  come  in  un- 
der said  assignment  for  a  full  and  perfect  discharge  of  all 
their  claims  against  said  Thomas  B.  Coddington,  could  not 
sue  on  the  note  or  endorsement  until  the  assignment  was 
closed.  The  Superior  Court  overruled  these  positions,  and 
the  jury  found  a  verdict  for  the  plaintiffs.  The  defendant 
excepted  and  had  a  hill  of  exceptions  duly  signed  and  sealed. 
The  Supreme  Court  on  writ  of  error  affirmed  the  judgment 
of  the  Superior  Court.  (See  3  Denio  16.) 

S.  Stevens  and  L.  Livingston  for  plaintiff  in  error. 
Charles  0'  Connor  for  defendants  in  error. 

GARDINER,  J.  The  Plaintiff  in  error,  the  defendant  below, 
was  the  endorser  of  a  note  made  by  Thomas  Coddington  for 
$10,000.  Thomas  Coddington  failed,  and  on  the  23d  January, 
1840,  made  an  assignment  to  Davis,  one  of  the  firm  of  Davis, 
Brooks  &  Co.,  the  endorsees  and  holders  of  the  note  and  the 
plaintiffs  below.  On  the  28th  of  January,  and  prior  to  the 
maturity  of  the  note,  the  defendant  with  full  knowledge  of 
the  above  facts,  wrote  the  following  letter  : 

"  Messrs.  DAVIS,  BROOKS  &  Co. — GENTS  :  Please  not  pro- 
test T.  B.  Coddington's  note  due  2d  February,  for  ten  thou- 
sand dollars,  and  I  will  waive  the  necessity  of  the  protest 
thereof ;  and  oblige  respect'ly,  &c., 

SAMUEL  CODDINGTON." 

The  construction  of  this  letter  is  the  first  important  ques- 
tion presented  in  the  cause. 

The  term  protest  in  a  strict  technical  sense  is  not  applica- 
ble to  promissory  notes.  The  word,  however,  as  I  apprehend, 
has  by  general  usage  acquired  a  more  extensive  signification, 
and  in  a  case  like  the  present  includes  all  those  acts  which  by 
law  are  necessary  to  charge  an  endorser.  When  among  men  of 
business  a  note  is  said  to  be  protested,  something  more  is  un- 
derstood than  an  official  declaration  of  a  notary.  The  expres- 


190  CASES  IN  THE  COURT  OF  APPEALS. 


Cuddington  v.  Davis. 


sion  would  be  used  indifferently  to  indicate  a  series  of  acts 
necessary  to  convert  a  conditional  into  an  absolute  liability, 
whether  those  acts  were  performed  by  a  mere  clerk  or  a  pub- 
lic officer.  It  is  obvious  that  the  word  was  used  in  its  popular 
acceptation  by  the  defendant  below.  He  requests  the  endor- 
sees "  not  to  protest  the  note,  and  that  he  would  waive  the 
necessity  of  the  protest  thereof." 

The  protest  to  which  the  endorser  alluded  was  something 
u  necessary"  to  be  done,  something  also  for  the  benefit  of  the 
endorser,  for  he  assumed  to  waive  it.  It  could  not  therefore 
be  a  memorandum,  or  declaration  made  by  a  notary,  because 
neither  of  them  were  required.  Nor  could  he  have  intended 
to  waive  that  which  whether  performed  or  omitted,  his  right 
would  in  no  manner  be  affected.  The  only  things  necessary 
on  the  part  of  the  endorsees  was  a  demand  of  payment  of  the 
maker,  and  notice  to  the  endorser.  By  waiving  the  necessity 
of  protest  the  defendant  dispensed  with  both,  or  his  commu- 
nication is  destitute  of  all  meaning. 

It  was  argued  indeed  that  the  defendant  might  have  refer- 
red to  the  notarial  certificate  authorised  by  statute.  But  this 
certificate  is  made  prima  facie  evidence  of  a  demand  and 
notice  in  favor  of  the  endorsees.  It  is  for  their  benefit.  The 
defendant  in  making  such  reference  must  have  supposed  that 
the  certificate  was  necessary  evidence,  because  he  waives  the 
necessity  of  a  protest,  which  according  to  the  argument  is 
equivalent  to  dispensing  with  the  necessity  of  a  notarial  certi- 
ficate. Now  to  every  fair  mind,  waiver  of  proof  necessary  to 
establish  a  particular  fact,  is  equivalent  to  an  agreement  to 
admit  it.  Whether  therefore  the  defendant  by  waiving  the 
necessity  of  a  protest,  intended  to  dispense  with  demand  and 
notice,  or  with  the  evidence  of  them  the  result  would  be  (he 
same,  and  in  either  case  he  is  concluded  by  his  own  stipulation 
from  raising  the  objection  taken  upon  the  trial.  I  agree  with 
the  learned  Judge  who  delivered  the  opinion  of  the  Supreme 
Court,  that  the  circumstances  attending  the  written  stipula- 
tion of  the  defendant  confirm  this  view ;  but  I  prefer  to  rest 
my  opinion  upon  the  letter  alone,  as  furnishing  prima  facie 


ALBANY,  JANUARY,  1848.  191 


Coddington  v.  Davis. 


evidence  of  an  intent  by  the  endorser  to  waive  demand  of 
payment  and  notice  to  which  he  was  otherwise  entitled. 

Another  important  point  is  made  by  the  defendant,  that 
the  written  statement  signed  by  the  plaintiffs  and  others, 
dated  8th  February,  1840,  was  a  valid  discharge  by  the  plain- 
tiff of  Thomas  Coddington  the  maker  of  the  note  from  all 
liability  thereon,  and  consequently  of  the  endorser.  On  the 
23d  of  January,  1840,  Thomas  Coddington  executed  his 
assignment  to  Davis,  and  directed  his  assignee  to  pay  and  dis- 
charge the  debts  owing  by  the  assignor  contained  in  the 
schedule  marked  A.  in  equal  proportions.  In  this  schedule 
we  find : 

SAMUEL  CODDINGTON,  for  endorsement,  $10,000 

"  "  "  1,854 

" .  "        Balance  of  account,  2,178 

Taking  the  schedule  in  connection  with  the  assignment,  it 
will  be  perceived,  that  the  debts  to  the  defendant  for  endorse- 
ments and  for  private  account,  are  placed  upon  the  same  foot- 
ing as  debts  owing  by  the  assignor  to  the  defendant,  and  both 
are  directed  to  be  paid  absolutely.  It  is  obvious  therefore 
that  the  $10,000  endorsement,  which  is  admitted  to  be  the 
note  in  question,  was  understood  by  the  parties  to  the  assign- 
ment to  be  the  debt  of  the  defendant  and  treated  accordingly. 
This  was  on  the  23d  January :  on  the  24th,  the  defendant  in 
writing,  directed  Davis  as  assignee  to  pay  to  the  order  of  Davis, 
Brooks  &  Co.,  all  monies  that  should  be  received  by  him  as 
assignee  on  his  account,  to  the  extent  of  $10,000  value 
received. 

By  this  act  the  defendant  not  only  assented  to  the  assign- 
ment, but  as  it  appears  to  me,  distinctly  recognised  the  rela- 
tion in  which  he  was  placed  by  that  instrument  as  creditor  to 
the  assignor  to  the  amount  of  the  $10,000  unconditionally, 
and  of  course  liable  for  the  same  amount  to  the  plaintiffs. 
He  directed  the  payment  of  a  sum  equal  to  the  note,  not  only 
out  of  the  fund  set  apart  in  the  assignment  for  that  purpose, 
but  out  of  the  proceeds  of  the  property  exclusively  applicable 
to  the  discharge  of  a  debt  due  to  him  individually,  for  a  bal 


192  CASES  IN  THE  COURT  OF  APPEALS. 


Coddington  v.  Davis. 


ance  of  account.  In  a  word,  he  recognized  this  as  a  debt 
due  from  Thomas  Coddington  to  himself,  by  claiming  tinder 
the  assignment  by  which  it  was  so  declared,  and  as  a  debt  due 
from  him  to  the  plaintiffs  by  a  voluntary  application  of  his 
private  funds  to  its  payment.  In  conformity  with  this  view 
of  his  rights  and  liability,  we  find  him  on  the  28th  day  of 
January,  the  date  of  his  letter  to  Brooks,  Davis  &  Co..  waiv- 
ing the  necessity  of  protest,  and  thus  converting  a  conditional 
into  an  absolute  liability  upon  his  part,  for  the  payment  of 
this  note  to  the  plaintiff. 

Cinder  these  circumstances  the  discharge  of  February  8, 
1840,  was  executed  by  Davis  in  behalf  of  Davis,  Brooks  &  Co., 
and  by  some  others  of  the  creditors  of  T.  Coddington. 

This  instrument,  which  is  without  seal,  recites  in  substance, 
that  T.  Coddington  was  indebted  or  liable  to  the  subscribers, 
and  that  he  had  made  an  assignment  to  Davis  for  the  benefit 
of  the  subscribers  and  other  creditors,  and  in  consideration 
of  one  dollar,  of  said  assignment,  and  of  a  promise  to  pay 
any  balance  that  might  not  be  received  under  the  same,  in 
seven  years — the  subscribers  did  release  and  discharge  and 
forever  acquit  the  said  T.  Coddington,  from  all  claims,  de- 
mands, liabilities,  engagements,  judgments,  and  other  respon- 
sibilities then  existing  against  him,  beyond  what  they  might 
realize  on  said  claims,  &c.,  from  said  assignment;  "We,"  the 
instrument  proceeds,  "receiving  and  assenting  to  the  condition* 
of  said  assignment,  and  coming  in  under  the  same,  for  a  full 
and  perfect  discharge  of  our  said  claims.  The  said  Codding- 
ton, in  consideration  of  the  above,  giving  to  us  his  written 
engagement  to  pay  the  balance,"  &c. 

It  is  apparent  that  this  discharge  refers  to  and  absolutely 
adopts  the  assignment,  with  all  its  conditions,  and  provisions 
as  its  basis.  One  of  these  conditions  was,  that  the  defendant 
should  be  paid  out  of  the  fund,  as  a  preferred  creditor,  the 
amount  of  this  note  as  a  debt  due  to  him.  To  this  the  par- 
ties to  the  discharge  expressly  assented.  When,  therefore,  it 
was  recited  in  that  instrument  that  Thomas  Coddington  was 
indebted  or  liable  to  Davis,  Brooks  &  Co.,  for  certain  debts, 


ALBANY,  JANUARY,  1848.  193 


Coddington  v.  Davis. 


and  that  the  former  had  made  an  assignment  for  the  benefit 
of  the  latter  as  creditors,  the  parties  could  not  have  referred 
to  this  demand  which  they  had  agreed  to  describe  and  had 
actually  inventoried  as  the  debt  of  another. 

It  may  be  granted  that  independent  of  the  assignment,  the 
plaintiffs  as  to  this  note  were  the  principal  creditors  of  Thomas 
Coddington.  But  we  must  seek  the  intention  of  the  parties 
in  their  writings,  not  in  the  relation  previously  existing. 
When  therefore  the  assignment,  as  we  have  a  right  to  infer, 
purposely  omits  Brooks,  Davis  &  Co.,  and  substitutes  the  de- 
fendant as  the  creditor  to  whom  this  debt  was  owing ;  the  dis- 
charge upon  authority  as  well  as  the  plainest  principles  of 
justice  should  be  restricted  to  the  relations  established  by  the 
instrument  to  which  it  refers  and  expressly  adopts.  ( Tayler 
vs.  ffomersham,  4  Maule  1  Selwyn  422 ;  23  Com.  Law  R. 
50,  7  Com.  Law  205,  1  Cowen  123,  126.) 

The  engagement  entered  into  by  Thomas  Coddington  at  the 
time  of  the  execution  of  the  release  confirms  this  view.  By 
that  he  promised  to  pay  Brooks,  Davis  &  Co.,  whatever  they 
might  not  realize  from  his  assignment,  on  account  of  his 
indebtedness  to  them.  This  debt  of  $10,000  had  been  inven- 
toried as  due  to  S.  Coddington.  To  suffer  Brooks,  Davis  &  Co. 
to  share  equally  with  the  creditors  of  the  second  class,  upon  the 
ground  that  this  debt  was  due  to  them  also,  would  be  virtually 
a  fraud  upon  those  creditors,  upon  the  assignor,  and  those 
who  executed  the  discharge  with  Brooks,  Davis  &  Co.  These 
creditors  with  justice  could  say  to  the  plaintiffs,  that  with 
their  concurrence  the  assignor  had  appropriated  property  for 
the  payment  of  this  debt  to  the  defendant.  You  have  elect- 
ed to  claim  through  him,  to  which  he  has  assented,  and  you 
are  bound  by  your  election. 

It  is  unnecessary  therefore  to  consider  the  objection  of  a 
want  of  consideration,  &c.,  raised  to  this  discharge.  Viewing 
it  as  legally  binding  upon  the  parties,  it  does  not  extend  to 
this  demand,  and  cannot  have  the  effect  either  to  discharge  or 
extend  the  time  of  payment  of  the  note  in  quest***? 
judgment  of  the  Supreme  Court  should  be 

25 


194  CASES  IN  THE  COURT  OF  APPEALS. 

Coddington  v.  Davis. 

BRONSON,  J.  also  delivered  an  opinion  in  favor  of  affirmance ; 
and  JEWETT,  Ch.  J.,  JONES  and  WRIGHT,  Js.,  concurred. 

RuoaLES,  J.,  dissenting.  If  the  instrument  called  the  dis- 
charge, dated  on  the  8th  of  February,  1840,  signed  by  Davis, 
Brooks  $  Co.,  did  not  absolutely  and  entirely  discharge  Tho- 
mas B.  Coddington  from  all  liability  on  the  ten  thousand  dollar 
note  as  maker,  it  operated,  beyond  a  doubt,  as  it  appears  to 
me,  to  extend  the  time  for  the  payment  of  that  debt  until  the 
expiration  of  seven  years  from  the  date  of  the  instrument.  So 
far  as  respects  the  right  of  Davis,  Brooks  £  Co.  to  recover 
against  Samuel  Coddington  the  endorser,  it  is  immaterial 
•whether  it  is  an  entire  discharge  or  an  extension  of  time.  In 
either  case  the  action  against  the  endorser  is  barred,  and  un- 
less the  suit  on  the  note  could  have  been  maintained  by  Davis, 
Brooks  $  Co.  against  Thomas  B.  Coddington,  the  maker,  then 
action  against  Samuel  Coddington,  the  endorser,  must  fail. 

Want  of  consideration  furnishes  no  good  ground  of  objec- 
tion to  the  validity  of  the  discharge.  The  pecuniary  conside- 
ration expressed  in  it,  is  alone  sufficient,  although  nominal  in 
amount,  it  was  inserted  doubtless  for  the  purpose  of  giving  va- 
lidity to  the  instrument,  and  is  as  effectual  for  that  purpose  as 
if  it  had  been  a  larger  sum.  If  the  instrument  had  been  un- 
der seal,  the  parties  would  have  been  estopped  from  denying 
it.  Not  being  under  seal  that  rule  may  not  apply.  But  the 
recital  in  the  instrument  is  evidence  of  payment  until  proof 
be  given  to  the  contrary,  and  no  such  proof  was  offered.  The 
sum  of  one  dollar,  expressed  as  the  consideration,  is  not  a 
part  of  the  debt  to  be  paid,  but  a  separate  and  independent 
sum  ;  and  the  creditors  cannot  now  avoid  this  agreement  on  the 
ground  of  want  of  consideration,  without  committing  a  mani- 
fest fraud  upon  Thomas  B.  Coddington.  The  assignment  is 
also  a  sufficient  consideration  to  support  the  agreement.  If  it 
should  be  answered  that  this  was  a  past  consideration,  not  ap- 
pearing on  the  face  of  the  instrument  to  have  been  made  at 
the  request  of  the  creditors,  the  answer  is,  that  if  the  objec- 
tion had  been  made  at  the  trial,  no  jury  would  have  hesitated 


ALBANY,  JANUARY,  1848.  195 


Coddington  v.  Davis. 


a  moment,  from  the  beneficial  nature  of  the  transaction,  to 
liave  inferred  a  request. 

Let  us  then  look  at  the  discharge  with  a  view  to  ascertain 
whether  Davis,  Brooks  £  Co.  could,  after  having  executed  it, 
and  within  the  seven  years  mentioned  in  it,  have  sued  Thomas 
B.  Coddington,  the  maker,  upon  the  note  in  question. 

First.  It  was  admitted  on  the  argument  by  the  counsel  for 
the  defendants  in  error,  that  the  words  in  the  body  of  the  in- 
strument, if  considered  alone,  were  abundantly  sufficient  to 
comprehend  and  include  the  note  in  question,  and  to  acquit  the 
maker  of  any  liability  at  least  during  the  period  of  seven 
years.     It  purports  "  to  release,  discharge,  and  forever  acquit 
him  from  all  claims,  demands,  liabilities,  judgments,  and  other 
responsibilities  now  existing  against  said  Coddington."     But 
these  comprehensive  words  were  supposed  to  be  limited  and 
restrained  in  their  effect  by  something  in  the  recital.     Let  us 
refer  to  it.     The  recital  is,  "  that  Thomas  B.  Coddington  is 
indebted  to  us  for  certain  debts  and  liabilities  heretofore  in- 
curred."    This  certainly  embraced  the  $10,000  note.     The 
recital  then  proceeds,  as  follows :  "  And  said  Coddington  has 
made  an  assignment  of  his  property  to  Charles  Davis,  Esq., 
for  the  benefit  of  us  and  other  creditors  of  said  Coddington," 
&c.      Now  the  question  arises  whether  the  assignment  was 
made  for  the  benefit  of  Davis,  Brooks  <f  Co.,  as  well  in  respect 
of  this  §10,000  debt,  as  with  respect  to  the  other  debts  he 
owed  them,  and  which  were  mentioned  in  the  schedules.     The 
issignmcnt  was  for  the  benefit  of  those  who  Avere  to  take  the 
lividends,  and  if  they  were  entitled  to  the  dividends  on  that 
debt  as  well  as  on  the  others,  then  it  follows  that  the  recital, 
instead  of  excluding  the  $10,000  debt  from  the  operation  of 
the  discharge,   brings  it  conclusively  within   its   scope  and 
meaning. 

Here  it  becomes  necessary  to  refer  to  the  assignment  and 
schedule  annexed  to  it ;  for  it  was  rightly  said  by  the  Supreme 
Court  in  its  opinion  on  this  case,  that  the  assignment  being 
referred  to  in  the  discharge,  both  papers  should  be  examined 
for  the  purpose  of  ascertaining  the  intention  of  the  parties. 


196  CASES  IN  THE  COURT  OF  APPEALS. 

Codclington  v.  Davis. 

The  trust  created  in  the  assignment  is  that  the  assignee, 
"  out  of  the  monies  realized  from  the  property,  shall  pay  and 
discharge  the  debts  owing  by  me,  the  said  Thomas  B.  Cod- 
dington, mentioned  and  contained  in  the  schedule  hereto  an- 
nexed, marked  A,  and  if  there  should  not  be  sufficient  to  pay 
said  debts  in  full,  then  to  pay  them  in  equal  proportions  ac- 
cording to  their  amounts." 

Schedule  A  is  as  follows : 

Samuel  Coddington  for  endorsement,  $10,000  00 

do.  do.  do.  1,185  44 

do.  do.  for  balance  of  account  2,178  40 


13,363  84 

Davis,  Brooks  &  Co.,  $1,000  00 

James  Taylor  for  account,  373  79 

Joseph  Meeks  for  rent,  250  00 

It  was  assumed,  upon  the  argument,  and  treated  by  all  par- 
ties as  an  undisputed  fact,  that  the  $10,000  debt  in  schedule 
A,  opposite  the  name  of  Samuel  Coddington,  as  endorser,  is 
the  debt  due  upon  the  note  in  question ;  and  it  is  to  be  ob- 
served that  although  the  debt  is  set  down  in  the  schedule  op- 
posite the  name  of  Samuel  Coddington,  he  is  not  set  down  as 
a  creditor  in  the  ordinary  sense,  but  he  is  shewn  by  the  entry 
to  be  an  endorser.  It  does  not  appear,  however,  in  the  case 
that  his  name  was  put  into  the  column  of  creditors  by  his  act 
or  with  his  consent.  It  was  the  act  of  the  parties  to  the  as- 
signment, and  not  his  ;  and  they  knew  that  he  was  in  fact  an 
endorser  merely  and  not  a  creditor.  But  the  debt  was  never- 
theless preferred.  It  stood  at  the  head  of  the  preferred  sche- 
dule. And  for  whose  benefit  ?  or  in  other  words,  who  were 
entitled  to  the  dividends  accruing  upon  it  under  the  assign- 
ment ?  Most  undoubtedly  Davis,  Brooks  <f  Co.,  and  they  only. 
They  were  the  creditors.  Thomas  B.  Coddinnton  was  the 
debtor,  and  Samuel  Coddinr/ton  the  surety.  It  is  a  well  set- 
tled principle  of  equity  that  the  creditor  ia  entitled  to  the 
benefit  of  all  the  securities  which  the  principal  debtor  ha3 
given  to  his  surety ;  and  if  it  be  supposed  that  one  of  the  ob- 


ALBANY,  JANUARY,  1848.  197 

Coddington  v.  Davis. 

jects  of  the  assignment  was  to  secure  Samuel  Coddington,  as 
endorser,  the  assignment  immediately  enured  to  the  benefit  of 
Davis,  Brooks  $•  Co.,  the  creditor;  and  they  were  as  much 
entitled  to  the  avails  of  the  assignment,  and  to  the  control  of 
it,  as  if  their  names  had  been  put  down  in  the  schedule  as  cre- 
ditors. (Surge  on  Suretyship  324 ;  1  Story's  Eq.  Com.,  Sec. 
502  ;  Pitman  on  Pr.  and  Surety  89,  113.) 

As  soon  as  a  dividend  was  declared,  the  share  set  apart  to 
this  debt  was  payable  instantly  to  Davis,  Brooks  £  Co.  The 
assignee  (one  of  that  firm)  had  the  power  and  the  right  so  to 
apply  it.  Davis,  Brooks  $•  Co.  could  lawfully  require  it  to  be 
so  applied.  Samuel  Coddington  had  no  right  to  require  it  to 
be  paid  to  him.  The  effect  of  the  assignment,  therefore,  is 
in  all  respects  the  same  as  if  Davis,  Brooks  $•  Co.  had  been 
named  in  schedule  A,  instead  of  Samuel  Coddington,  as  cre- 
ditors for  the  $10,000  debt ;  and  without  reference  to  the 
order  by  which  Samuel  Coddington,  on  the  24th  of  January, 
directed  the  assignee  to  pay  the  dividends  to  them,  the  assign- 
ment, was  as  much  for  their  benefit  in  regard  to  this  debt  as 
if  Samuel  Coddington' s  name  had  been  omitted,  and  theirs 
inserted  as  creditors ;  and  being  so,  the  note  in  question  comes 
as  well  within  the  letter  as  within  the  spirit  of  the  recital  in 
the  discharge.  The  recital  refers  to  the  assignment  in  gen- 
ral  terms,  but  not  to  the  schedule  specially.  It  does  not  point 
to  the  debts  standing  in  the  name  of  Davis,  Brooks  $  Co.,  as 
the  debts  on  which  the  discharge  was  to  operate,  but  to  the 
debts  due  from  T.  B.  Coddington  to  them,  and  upon  which  the 
assigned  property  was  to  be  applied.  Indeed,  nothing  can  be 
clearer  to  my  mind  than  that  the  discharge  was  to  operate 
upon  all  the  debts  on  which  the  creditors  who  signed  it  were 
entitled  to  dividends.  The  assignment  was  mainly  the  con- 
sideration on  which  the  discharge  was  founded,  and  upon  no 
other  construction  can  the  two  instruments  have  a  consistent 
and  harmonious  operation.  It  will  be  borne  in  mind  that  the 
order  made  by  Samuel  Coddington,  on  the  24th  of  January, 
directing  his  dividends  to  be  paid  to  Davis,  Brooks  $  Co.,  had 
no  effect  whatever  upon  the  dividend  to  be  paid  on  the 


198  CASES  IN  THE  COURT  OF  APPEALS. 


Coddington  v.  Davis. 


$10,000  debt.  Before  that  order  was  given,  and  without  any 
aid  from  it,  that  dividend  belonged  to  them,  by  the  legal  ope- 
ration of  the  assignment.  But  the  order  was  effectual  to  give 
to  Davis,  Brooks  $  Co.  the  dividends  upon  the  other  debts  in 
schedule  A  standing  in  Samuel  Coddington' s  name ;  and  for 
that  purpose  only  it  ought  to  be  understood  to  have  been  made, 
because  for  every  other  purpose  it  was  a  dead  letter. 

In  the  opinion  delivered  in  the  Supreme  Court  it  is  said  to 
be  evident,  from  what  transpired  between  Samuel  Coddington 
and  the  plaintiffs,  that  both  the  Coddingtons  treated  this  as 
the  proper  debt  of  the  defendant  to  the  plaintiffs,  and  that  it 
was  not  at  that  time  considered  as  a  debt  against  T.  B.  Cod- 
dington. But  I  find  no  evidence  in  the  case  shewing  that 
Samuel  Coddington  so  treated  it.  It  has  before  been  observed 
that  the  insertion  of  his  name  in  schedule  A,  in  connection 
with  the  note  in  question,  does  not  appear  to  have  been  his 
act,  or  done  with  his  assent.  His  waiver  of  the  protest  recog- 
nizes himself  as  the  endorser,  and  Thomas  B.  Coddington  as 
the  principal  debtor.  The  purpose  of  the  order  to  pay  over 
the  dividends  to  the  plaintiffs,  has  already  been  adverted  to ; 
and  the  discharge  of  Thomas  B.  Coddington  by  the  creditors 
appears,  as  far  as  the  evidence  goes,  to  have  been  made  with- 
out his  knowledge  or  concurrence.  There  never  was  any  as- 
sumption on  his  part  to  pay  the  debt  except  in  his  character 
as  endorser ;  and  it  is  in  that  character  only  that  the  plaintiffs 
have  sought  in  this  suit  to  make  him  responsible :  and  unless 
the  note  in  question  then  was  and  now  is  due  from  Thomas  B. 
Coddington,  as  principal  debtor,  they  must  fail. 

If  the  assignment  of  the  23d  of  January,  and  the  ordei 
made  by  Samuel  Coddington  on  the  following  day,  should,  from 
tlu*  dates  or  otherwise,  be  regarded  as  part  of  the  same  trans- 
action, and  be  looked  upon  as  evidence  that  Samuel  Codding 
ion,  as  well  as  the  parties  to  this  suit,  were  privy  to  the  exe- 
cution of  the  assignment  and  to  the  making  of  schedule  A, 
then,  on  that  hypothesis,  another  conclusion  follows  equally 
fatal  to  the  plaintiffs.  It  is  this,  that  it  must  have  been  un- 
derstood and  agreed  between  all  the  parties  at  the  time  that 


ALBANY,  JANUARY,  1848.  199 

Coddington  v.  Davis. 

Davis,  Brooks  <f  Co.  were  to  have  the  dividends  on  the 
$10,000  debt.  This  effectually  brings  that  debt  within  the 
terms  of  the  discharge  and  its  recital. 

It  was  urged  upon  the  argument  that  Davis,  Brooks  $•  Co. 
could  not  have  intended  to  discharge  a  solvent  endorser  by 
giving  time  to  the  insolvent  maker  of  the  note  in  question. 

The  solvency  of  the  endorser  is  not  a  fact  proved  in  the  case. 
But  if  it  were  proved,  the  argument  is  entitled  to  very  little 
weight  when  applied  to  the  consideration  of  a  written  instru- 
ment. But  when  considered  in  connection  with  other  facts 
proved  in  the  case,  it  falls  to  the  ground  entirely.  When  the 
discharge  was  given,  Charles  Davis,  one  of  the  plaintiffs,  held 
the  assignment  of  property  amounting  nominally  to  $32,000. 
The  preferred  debts,  of  which  the  note  in  question  was  a  part, 
amounted  to  less  than  $15,000  :  and  by  Samuel  Coddington 's 
order  of  the  24th  of  January,  the  plaintiffs  became  entitled  to 
receive  the  dividends  on  other  preferred  debts  due  to  him  of 
between  $3,000  and  $4,000,  and  to  apply  them  to  the  $10,000 
note  in  question.  There  was  no  proof  of  the  insufficiency  of 
the  property  assigned  to  pay  the  entire  debt.  Part  of  the  as- 
signed property  remained,  at  the  time  of  the  trial,  undisposed 
of,  and  the  assignment  had  not  been  closed. 

There  is  another  paper  in  this  case  not  yet  mentioned  which 
throws  light  on  the  question  between  the  parties.  It  is  the 
promise  which  Thomas  B.  Coddington  gave  in  writing  to  the 
plaintiffs,  at  the  time  they  executed  the  discharge,  to  pay  at 
the  expiration  of  seven  years,  the  balance  of  his  indebtedness 
to  them  which  might  be  left  after  deducting  what  might  be 
realized  from  the  assignment.  A  reference  to  that  instrument 
will  shew  that  like  the  discharge  and  its  recital,  it  was  evi- 
dently intended  to  include  the  note  in  question. 

.Finally.  From  reading  the  three  instruments  together, 
that  is  to  say  the  assignment  and  schedules,  the  discharge  and 
the  written  promise  of  T.  B.  Coddington,  I  am  brought  to  the 
following  conclusions : 

First.  That  by  the  assignment  and  schedules,  without  refer- 
ence to  any  other  paper,  Davis,  Brooks  $•  Co.  were  entitled 


L'OO  CASES  IN  THE  COURT  OF  APPEALS. 


Coddington  v.  Davis. 


to  the  dividends  on  the  $10,000  debt,  mentioned  in  schedule 
A  as  the  creditors  of  T.  B.  Coddington,  although  that  debt 
was  set  down  against  the  name  of  Samuel  Coddington  as  en- 
dorser. 

Secondly.  That  by  the  recitals  in  the  discharge,  Davis, 
Brooks  <f  Co.  referred  to  the  debts  due  from  T.  B.  Codding- 
ton to  them,  of  which  this  was  the  principal  one,  and  there- 
fore include  this  debt ;  that  they  do  not  refer  to  the  debts  set 
down  to  the  names  of  Davis,  Brooks  $  Co.,  and  therefore  do 
not  exclude  it. 

Thirdly.  That  the  operative  words  in  the  body  of  the  dis- 
charge are  amply  sufficient  to  include  the  debt  in  question,  and 
do  include  it. 

Fourthly.  That  the  obvious  meaning  of  the  discharge  was, 
that  it  should  operate  on  all  the  debts  on  which  the  creditors 
who  signed  it  were  respectively  entitled  to  dividends ;  and 

Fifthly.  That  Davis,  Brooks  $  Co.  in  conformity  with  this 
construction,  took  Thomas  B.  Coddington's  written  promise  to 
pay,  at  the  end  of  seven  years,  the  balance  that  might  remain 
due  on  this  note,  and  on  his  other  debts,  after  deducting  what 
might  be  realized  from  the  assignment. 

I  am  therefore  of  opinion  that  the  judgment  of  the  Su- 
preme Court  should  be  reversed,  and  that  a  new  trial  should 
be  awarded. 

GRAY  and  JOHNSON,  Js.,  were  also  for  reversal. 

Judgment  affirmed. 


ALBANY,  JANUARY,  1848.  201 


Bouchaud  v.  Dias. 


BOUCHAUD,  Executor,  &c..  Appellant  vs.  DIAS  and  FUIUVIAN, 

•n  i 

Respondents. 

An  assignment  by  a  debtor,  who  is  insolvent,  of  his  property  in  trust  for  the 
benefit  of  a  single  creditor  or  surety,  containing  no  provision  for  the  benefit  of 
creditors  generally,  is  not  within  the  act  of  Congress  which  declares  the 
United  Slates  entitled  to  priority  of  payment,  "  in  cases  where  a  debtor  not  hav- 
ing sufficient  property  to  pay  all  his  debts  shall  make  a  voluntary  assignment 
thereof  for  the  benefit  of  his  creditors." 

Accordingly,  where  a  debtor  made  such  an  assignment  of  his  property,  and  his 
surety  in  certain  Custom  House  bonds  filed  a  bill,  claiming  that  the  United  States 
had  acquired  a  right  to  be  first  paid,  and  to  be  subrogated  to  that  right  on  the- 
ground  that  as  such  surety  he  had  been  compelled  to  pay  the  bonds;  field, 
that  the  bill  could  not  be  sustained. 

Costs  on  an  appeal  to  the  Court  of  Appeals  are  in  the  discretion  of  that  Court 
and  when  the  decree  of  the  Court  below  is  reversed,  it  should  be  without  costs. 

Appeal  from  Chancery.  Joseph  L.  Dias  and  Job  Furman, 
filed  their  bill  in  Chancery  before  the  Vice  Chancellor  of  the 
First  Circuit,  in  which  the  case  was  stated  in  substance  as 
follows  : — Castro  and  Henriques,  partners  in  trade  in  the  city 
of  New  York,  on  the  13th  day  of  May,  1823,  made  an  as- 
signment to  Louis  A.  Brunei  of  a  large  amount  of  property 
in  trust,  firstly,  to  pay  a  debt  which  they  owed  Brunei ; 
secondly,  to  pay  two  notes  made  by  them  and  endorsed  by 
him,  and  certain  Custom  House  bonds  given  for  duties  upon 
goods  imported  by  them,  executed  by  Castro  as  principal  and 
Brunei  as  surety  ;  and  lastly,  to  pay  over  or  reassign  the  sur- 
plus of  the  effects  assigned,  to  the  assignors,  or  hold  it  upon 
such  trusts  as  they  should  appoint.  The  debt  and  notes  pro- 
vided for  amounted:  to  §6,873,  and  the  Custom  House  bonds  to 
$30,626.  The  assignment  made  no  provision  for  any  other 
debts  than  those  already  specified,  and  the  declared  object  of 
making  such  assignment  was  to  pay  the  debt  due  to  Brunei, 
and  to  secure  him  for  his  liabilities  upon  the  said  notes  and 
Custom  House  bonds,  and  to  enable  him  to  pay  off  and  dis- 
charge them.  The  amount  of  property,  assigned  was  $80,000 
and  the  assignors  were  insolvent.  The  assignnient  on  its  face 
did  not  purport  to  convey  all  their  property,  but  such  was 

alledged  to  bo  the  fact. 

0  26 


202  CASES  IN  THE  COURT  OF  APPEALS. 


Bouchaud  v.  Dias. 


The  bill  also  charged,  that  at  the  time  of  the  assignment 
Castro  and  Henriques  were  largely  indebted  to  the  United 
States  upon  other  Custom  House  bonds,  three  of  which  Trere 
signed  by  the  complainant  Furman  as  surety,  and  which  he 
paid  to  the  United  States  on  the  loth  of  December,  1824, 
after  suit  and  judgment  against  him  and  Castro  upon  the 
bonds.  The  amount  paid  by  him  was  $3,737,52.  The  com- 
plainant Dias  was  a  co-surety  with  Brunei  on  two  of  the 
bonds  provided  for  in  the  assignment,  on  which  judgments 
were  obtained  against  him,  Brunei  and  Castro,  March  1, 1824, 
and  Dias  paid  to  the  United  States  upon  these  judgments  the 
sum  of  $1,000,  on  the  7th  of  November,  1834. 

The  bill  insisted,  that  by  reason  of  the  facts  stated,  the 
United  States  acquired  a  right  of  priority  of  payment  out  of 
the  assigned  property  over  all  other  creditors  under  the  act 
•  of  Congress  hereafter  referred  to,  and  that  the  complainants 
in  consequence  of  having  been  compelled  as  sureties,  to  make 
the  payments  above  mentioned,  were  entitled,  in  respect  to 
the  sums  so  paid,  to  stand  in  the  place  of  the  United  States, 
and  be  preferred  in  the  same  manner.  But  the  bill  admitted 
that  the  right  so  claimed  was  to  be  shared  in  common  with 
the  United  States,  which  still  held  unpaid  bonds  of  Castro, 
given  for  duties  as  aforesaid,  to  the  amount  of  about  $10,000, 
on  the  most  of  which  one  Thouillier  was  the  surety. 

The  bill  further  charged,  that  the  property  assigned  to 
Brunei  was  sufficient  not  only  to  pay  all  the  debts  provided 
for  in  the  assignment,  but  all  the  Custom  House  bonds  of 
Castro,  and  a  large  dividend  on  the  other  debts  of  Castro  and 
Ilcnriques,  but  that  Brunei,  in  disregard  of  the  rights  of  the 
United  States,  and  of  the  duty  lie  owed  to  the  sureties  of 
Castro  in  the  bonds,  paid  the  simple  contract  debts  mentioned 
in  the  assignment,  being  $6,873,  and  thereby  made  himself 
personally  answerable  for  that  amount.  That  Brunei  died 
29th  July,  1833,  having  made  his  will  whereby  the  defendant 
Bouchaud  was  appointed  his  executor,  and  that  Boucliaud  as 
such  executor  took  possession  of  a  large  amount  of  the  pro- 
perty of  his  testator,  including  the  effects  assigned  to  him  by 


ALBANY,  JANUARY,  1848  203 

Bouchaud  v.  Bias. 

Castro  and  Henriques  which  had  not  been  applied  to  the  pay- 
ment of  their  debts ;  also,  that  the  said  executor  paid  sundry 
simple  contract  creditors  of  Brunei,  without  regard  to  the  pre- 
ference due  to  the  United  States,  and  mingled  the  trust  fund 
with  the  individual  property  of  Brunei ;  and  the  bill  insisted 
that  Bouchaud  was  personally  liable,  to  the  extent  of  the  assets 
received  by  him,  for  the  debts  of  Castro  and  Henriques  which 
Brunei  in  his  lifetime  had  fraudulently  failed  to  discharge. 

Bouchaud,  Castro  and  Henriques,  and  the  United  States, 
were  made  defendants  to  the  bill  and  the  prayer  was,  that  the 
complainants  might  be  paid  the  amounts  which  they  had  re- 
spectively paid  as  sureties  upon  the  bonds,  and  interest,  from 
the  estate  of  Brunell  if  that  should  be  sufficient,  and  if  not 
then  that  Bouchaud  might  be  personally  charged. 

It  was  claimed  on  the  part  of  the  complainants,  that  the 
right  of  the  United  States  to  priority  of  payment  of  the  Cus- 
tom House  bonds,  arose  under  the  act  of  Congress,  passed 
March  2,  1799,  §  65,  (1  Story's  Ed.  Laws  U.  8.  630)  which 
enacts,  "  that  in  all  cases  of  insolvency,  or  where  any  estate 
in  the  hands  of  executors,  administrators  or  assignees,  shall 
be  insufficient  to  pay  all  the  debts  due  from  the  deceased,  the 
debt  or  debts  due  to  the  United  States  on  any  such  bond  or 
bonds  shall  be  first  paid,  and  any  executor,  administrator,  or 
assignee,  or  other  person,  who  shall  pay  any  debt  due  by  the 
person  or  estate,  for  whom  or  for  which  they  are  acting,  pre- 
vious to  the  debt  or  debts  so  due  to  the  United  States  from 
such  person  or  estate  being  first  duly  satisfied  and  paid,  shall 
become  answerable  in  their  own  person  or  estate  for  the  debt 
or  debts  so  due  to  the  United  States,  or  so  much  thereof  as 
may  remain  due  and  unpaid ;  and  actions  or  suits  at  law  may 
be  commenced  against  them  for  the  recovery  of  the  said  debt 
or  debts  in  the  proper  Court  having  cognizance  therecf."  A 
subsequent  clause  in  the  same  section  declares,  "  The  cases  of 
insolvency  mentioned  in  this  section,  shall  be  deemed  to  ex- 
tend as  well  to  cases  in  which  a  debtor,  not  having  sufficient 
property  to  pay  all  his  or  her  debts,  shall  have  made  a  volun- 
tary assignment  thereof  for  the  benefit  of  his  or  her  creditors, 


204  CASES  IN  THE  COURT  OF  APPEALS. 


Buuchaud  v.  Dias. 


or  in  which  the  estate  and  effects  of  an  absconding,  concealed 
or  absent  debtor,  shall  have  been  attached  by  process  of  law, 
as  to  cases  in  which  an  act  of  legal  bankruptcy  shall  have  been 
committed. 

The  defendant,  Bouchaud,  put  in  a  demurrer  to  the  bill  for 
want  of  equity,  which  was  overruled  by  the  Vice  Chancellor, 
whose  decision  was  affirmed  by  the  Chancellor  on  appeal. 
Bouchaud  appeals  to  this  Court. 

E.  Sandford,  for  Appellant. 

J.  L.  Mason,  for  Respondents. 

B.  F.  Butler,  for  the  United  States. 

BRONSON,  J.  The  Act  of  Congress,  (1799,  Chap.  128,  §  65.) 
so  far  as  it  touches  the  present  question,  only  gives  a  priority 
to  the  United  States  in  cases  of  insolvency,  where  a  "debtor, 
not  having  sufficient  property  to  pay  all  his  or  her  debts,  shall 
have  made  a  voluntary  assignment  thereof,  for  the  benefit  of 
his  or  her  creditors."  This  provision  never  has  been,  and  1 
think  never  should  be,  carried  beyond  cases  where  the  debtor 
has  made  an  assignment  for  the  benefit  of  his  creditors  in 
general.  Here  the  assignment  was  made  for  the  benefit  of 
Brunei ;  and  for  no  one  else.  No  debts  were  to  be  paid,  ex 
cept  such  as  were  due  to  him,  and  those  for  which  he  had 
made  himself  liable,  either  as  endorser  or  surety,  for  the  as- 
signors. It  is  true  that  paying  the  debts  for  which  Brunei 
stood  as  endorser  or  suuety  would  in  effect  satisfy  the  credit- 
ors to  whom  those  debts  belonged.  But  that  was  only  an 
incidental  effect  of  an  assignment  which  was  made  for  the  bene- 
fit of  Brunei  alone.  No  fair  and  reasonable  construction  of 
the  act  of  Congress  will  give  the  government  a  preference 
when  the  debtor  has  only  assigned  his  property  for  the  pur- 
pose of  paying  or  indemnifying  a  single  creditor  or  surety, 
This  question  was  considered,  and  the  authorities  were  exa- 
mined in  the  U.  S.  vs.  McLclIan,  (3  Sumncr  845)  and  although 
this  case  may  be  distinguished  from  that,  the  reasoning  of  Mr. 


ALBANY,  JANUARY,  1848.  205 

Bouchaud  v.  Bias. 

Justice  Story  goes  the  whole  length  of  deciding  that  this  bill 
cannot  be  maintained,  and  I  am  fully  of  that  opinion. 

The  assignment  states  very  distinctly  the  object  for  which 
it  was  made ;  and  there  is  nothing  in  the  case  to  impeach  the 
statement. 

The  decree  of  the  Court  of  Chancery  should  be  reversed  ; 
and  a  decree  should  be  entered  allowing  the  demurrer  and  dis- 
missing the  complainants'  bill,  with  costs  in  the  Court  of 
Chancery.  Costs  on  the  appeal  are  in  the  discretion  of  the 
Court ;  (2  R.  S.  618,  §  25)  and  where  a  decree  is  reversed,  I 
think  no  costs  should  be  given.  That  was  the  rule  of  the 
late  Court  of  Errors  for  a  long  time,  and  until  within  a  very 
recent  period. 

Such  are  my  views  of  the  case,  and  such  is  the  judgment 
of  the  Court. 

Decree  accordingly. 

JEWETT,  CH.  J.,  dissented. 


206 


CASES  IN  THE  COURT  OF  APPEALS. 


Stagg  v.  Jackson. 


206 

14 

1  46 

34 

'203 

43 

'432 

46 

'162 

47 

'  25 

52 

2537 

66 

'477 

85 

'570 

89 

'176 

89 

'177 

89 

'239 

89 

•492 

98 

2370 

116 

'239 

116 

'241 

160 

!289 

HA  561 

JOHN  T.  STAGQ,  Executor,  &c.,  Appellant,  vs.  JAMES  JACKSON 
and  MARY  E.,  his  wife,  Respondents. 

Where  a  testator  devised  and  bequeathed  all  his  real  and  personal  estate  to  his 
executors,  in  trust,  to  sell  the  same  whenever  they  should  see  fit;  also  with 
authority  to  lease  the  same,  and  directed  the  executors  to  divide  the  whole  trust 
estate  into  nine  equal  parts,  and  pay  over  and  convey  one  of  said  parts  to  each 
of  his  four  children  who  were  of  age,  and  to  hold  the  remaining  five  parts  until 
his  minor  children  should  respectively  become  of  age,  and  to  pay  over  and 
convey  to  them  their  shares  as  they  should  become  of  age ;  fetid,  that  the  ex- 
ecutor could  be  compelled  to  account  before  the  Surrogate,  not  only  for  the 
personal  estate  bequeathed  to  him,  but  also  for  the  rents  and  profits  of  the  rea 
estate,  and  for  the  proceeds  of  such  real  estate  as  he  had  sold  pursuant  to  the 
directions  contained  in  the  will. 

(t  seems,  upon  the  doctrine  of  equitable  conversion,  that  under  such  a  will  the 
whole  estate  is  to  be  considered  as  personal  estate  from  the  death  of  the  testa- 
tor, so  that  the  rents  and  profits  of  the  real  estate  received  by  the  executor,  and 
the  proceeds  of  a  sale  thereof  made  by  him,  become  legal  assets  in  his  hands, 
for  which  he  is  bound  to  account  as  personal  estate. 

Appeal  from  Chancery.  Abraham  Stagg  died  in  1835, 
having  first  made  his  last  will  and  testament  whereby  he  de- 
vised and  bequeathed  to  his  executors  all  his  estate,  real  and 
personal,  in  trust,  to  sell  such  estate,  or  any  part  of  it,  when- 
ever they  should  see  fit,  with  authority  also  to  lease  the  same 
for  a  life  or  lives  or  for  years,  and  to  invest  the  monies  arising 
from  the  sale  or  the  leasing,  in  bonds  and  mortgages,  or  in 
stocks,  and  to  change  the  investment  as  often  as  they  should 
see  fit.  The  will  also  directed  the  trustees  to  divide  the  trust 
estate,  and  the  proceeds  and  income  thereof,  into  nine  parts 
for  his  children,  and  to  pay  over  and  convey  one  part  to  each 
of  his  children,  Anna  Matilda,  Mary  Elizabeth,  and  John  T. ; 
to  hold  one  other  part  as  the  share  of  Hannah  Augusta  upon 
certain  specified  trusts ;  and  to  hold  the  remaining  five  parts 
until  the  testator's  five  minor  children  should  respectively  be- 
come of  age,  and  then  to  pay  over  and  convey  to  them  re- 
spectively their  shares.  During  their  minority  the  trustees 
were  directed  to  pay  out,  from  the  income  of  the  share  of 
each  child,  such  sum  for  the  education  and  support  of  such 


ALBANY,  JANUARY,  1848.  207 

Stagg  v.  Jackson. 

child,  as  they  should  think  proper.  In  case  either  of  the  mi- 
nors should  die  under  age  without  leaving  lawful  issue,  then 
the  share  of  the  one  so  dying  was  to  be  divided  among  the 
surviving  children,  and  the  children  of  such  as  should  be  dead, 
the  child  or  children  of  a  deceased  child,  taking  the  part  which 
the  parent  if  living  would  be  entitled  to. 

The  appellant,  John  T.  Stagg,  who  was  appointed  by  the 
will  one  of  the  executors  and  trustees,  proved  the  will  and  took 
out  letters  testamentary.  The  respondents  are  one  of  the 
daughters  of  the  testator  and  her  husband. 

The  appellant  was  cited  before  the  Surrogate  of  the  city 
and  county  of  New  York,  on  the  petition  of  the  respondents, 
to  render  his  account  as  executor,  and  such  proceedings  were 
had  that  in  August,  1843,  he  filed  his  account,  omitting  there- 
in all  mention  of  the  rents  and  profits  of  the  testator's  real 
estate,  and  the  proceeds  of  the  sale  of  such  real  estate  which 
nad  come  to  his  hands.  The  respondents  took  exceptions  to 
he  account,  alleging,  among  other  things,  that  certain  real 
estate  had  been  sold  pursuant  to  the  directions  contained  in 
the  will,  and  insisting  that  the  executor  should  charge  himself 
with  the  proceeds  of  such  sale,  and  with  the  rents  and  profits 
of  the  real  estate  received  by  him.  The  executor  demurred, 
insisting,  that  the  Surrogate's  Court  had  not  jurisdiction  to 
compel  an  account  of  the  funds  arising  out  of  the  real  estate, 
and  that  the  settlement  thereof  could  not  be  legally  had  in 
that  Court.  The  Surrogate  made  an  order  overruling  the  de- 
murrer of  the  executor,  and  directing  him,  among  other  things, 
to  account  for  the  rents  and  profits  and  the  proceeds  of  the 
sale  of  the  real  estate.  From  this  part  of  the  order  the  ex- 
ecutor appealed  to  the  Chancellor,  who  affirmed  the  decision 
of  the  Surrogate,  and  further  directed  the  executor  to  pay 
certain  interest,  by  way  of  damages,  for  the  delay  and  vexa- 
tion caused  by  the  appeal.  The  executor  appeals  to  this  Court. 

H.  E.  Davie8t  for  appellant. 

L.  B.  Woodruff,  for  respondents. 


208  CASES  IN  THE  COURT  OF  APPEALS. 


St:tgg  v.  Jackson. 


Points  for  Appellant : 

I.  The  Surrogate's  Court,  by  its  original  constitution  had 
no  concern  with  or  jurisdiction  over  real  estate,  and  whatever 
jurisdiction  it  at  present  possesses  over  real  property  ig  de- 
rived exclusively  from   statutory   enactments.      (Dakin  vs. 
Hudson,  6  Cow.  221 ;  Bloom  vs.  BurdicTc,  1  Hill  139.) 

II.  If  the  Surrogate  has  any  jurisdiction  in  this  case,  it  is 
derived  from  the  statute  which  enacts  that  "where,  by  any  last 
will  a  sale  of  real  estate  shall  be  ordered  to  be  made,  either 
for  the  payment  of  debts  or  legacies,  the  Surrogate,  in  whose 
office  the  will  shall  be  proved,  shall  have  power  to  cite  the 
executors  in  such  will  named  to  account  for  the  proceeds  of 
the  sales,  and  to  compel  distributions  thereof,  and  to  make  all 
necessary  orders  and  decrees  thereon,  with  the  like  power  of 
enforcing  them,  as  if  the  said  proceeds  had  originally  been 
personal  property  of  the  deceased  in  the  hands  of  an  admin- 
istrator.    (2  R.  S.  110,  §  57). 

III.  The  will  of  Abraham  Stagg  devises  the  real  estate  to 
his  executors  to  sell  all  or  any  part  of  the  trust  estate  when- 
ever they  shall  see  fit — thus  leaving  the  sale  to  rest  entirely  in 
the  discretion  of  the  executors.     The  case  therefore  does  not 
come  within  the  statute  above  cited,  and  the  whole  will  shows 
a  case  of  trust,  in  which  the  trustee  is  accountable  only  in  a 
Court  of  Equity. 

IV.  The  trustees  may  in  their  discretion  lease  the  real  es- 
tate, and  in  that  case  the  rents  and  profits  are  to  be  paid  over 
to  certain  persons.     This  is  a  clear  devise  and  not  a  legacy, 
and  if  a  devise  the  Surrogate  has  no  jurisdiction  over  it. 


Points  for  Respondents : 

I.  By  the  provisions  of  his  will  the  entire  property  of  the 
testator,  real  and  personal,  was  blended  in  one  common  fund  ; 
real  estate  to  be  converted  into  money,  and  the  whole,  to- 
gether with  the  income  thereof,  to  be  applied  to  the  payment 
of  debts  and  legacies,  and  to  be  divided  among  his  children. 


ALBANY,  JANUARY,  1848.  209 

Stagg  v.  Jackson. 

1.  This  amounted  to  a  conversion  of  the  real  estate  into 

personalty  at  the  death  of  the  testator,  upon  the  doc- 
trine of  equitable  conversion. 

2.  This  would  be  true,  even  if  there  had  been  no  devise  of 

the  legal  estate,  but  only  a  power  to  sell,  &c.  to  pay 
debts  and  legacies,  &c.  (Ram  on  Assets,  p.  139,  (205,) 
and  cases  cited  ;  2  Pow.  on  Dev.  p.  60,  and  onward  ; 
Leigh  $•  Dalzell  on  JEq.  Conversion,  5  Law  Library, 
~\.st  Series  ;  Marsh  vs.  Wheeler,  2  JEwd.  Ch.  JR.  157  ; 
Lorrillard  vs.  Coster,  6  Paige,  218  ;  Bunce  vs.  Van- 
dergrift,  8  Paige,  37). 

II.  In  accordance  with  the  above  principles,  which  apply 
in  equity  to  the  whole  estate  before  it  is  actually  converted 
into  money,  the  rents  and  profits,  when  collected,  and  the  pro- 
ceeds of  sales  actually  made,  are  legal  assets  in  the  hands  of 
the  executor. 

1.  The  powers  conferred  by  the  will  appertain  to  John  T. 

Stagg,  in  his  representative  character  (i.  e.  as  execu- 
tor). 

2.  And  upon  the  principle  that  whatever  goes  to  the  execu- 

tor as  executor  is  legal  assets,  both  the  income  before 
a  sale  and  the  proceeds  after  the  sale  are  deemed  legal 
assets  in  his  hands.  (1  Cruise,  61 ;  1  Afk.  484;  1 
P.  Wms.  430;  Hard.  404. 133;  1  Vern.  63 ;  2  Vern. 
106,  248, 405 ;  Free.  Ch.  117,  136  ;  2  P.  Wm.  415, 
Deg  vs.  Deg  ;  1  Lev.  224  Dethicke  vs.  Caravan}. 

III.  The  interest  of  the  respondents  (in  right  of  Mrs.  Jack- 
son, the  daughter  of  the  testator)  is  that  of  legatee,  entitled 
to  an  immediate  division  of  the  estate.     And  the  trusts  created 
for  the  protection  of  the  minor  children  and  grandchildren  of 
the  testator  do  not  impair  the  respondents'  right  to  treat  the 
moneys  received  by  the  executor  as  legal  assets,  received  for 
their  use. 

IV.  Real  estate,  when  converted  into  money  for  the  pay- 
ment of  debts  and  legacies  and  distribution,  is  not  only  legal 
and  personal  assets  in  the  hands  of  the  executor,  but  is  *o  be 

accounted  for  before  the  Surrogate. 

27  & 


210  CASES  IN  THK  COURT  OF  APPEALS. 


Stagg  v.  Jackson. 


1.  The  statute  is  explicit  in  regard  to  proceeds  of  sales. 

2.  There  is  no  foundation  for  any  distinction  between  the 

rents  collected  before  the  sale  and  the  money  received 
on  the  sale  ;  both  are  the  result  of  the  conversion  con- 
templated by  the  will. 

3.  The  accounting  must  therefore  be  as  executor.  (2  R.  8. 

109-110,    §  55 ,57,  61 ;    id.  92,    §  52,  53 ;   id.   90, 
§  45,  48 ;    id.  §  18,  19  ;    Bogert  vs.  Hertell,  4  Hill, 
p. -492 ;   Toller  on  Exrs.  p.  413,  and  onward;  Sess. 
Laws  c/1837,  Ch.  460,  §  75,  p.  537). 
V.  There  is  nothing  meritorious  in  the  objections  by  the 
executor  to  the  order  appealed  from.     The  nature  of  these 
objections — the  previous  decision  of  the  Court  of  Chancery 
upon  the  appellant's  own  application  in  regard  to  this  estate, 
acquiesced  in  by  him,  and  the  lapse  of  twelve  years,  during 
which  the  executor  has  held  this  estate  in  his  own  hands,  all 
show  that  this  appeal  is  taken  for  the  mere  purpose  of  vexa- 
tion and  delay,  while  the  executor  retains  the  money  for  his 
private  use  and  benefit.     (2  R.  S.  618,  §35,  Boyd  vs.  Bris- 
ban,  11  Wend.  529). 

JEWETT,  Cn.  J.  The  principal  question  made  on  the  argu- 
ment was,  whether  the  Surrogate's  Court  had  jurisdiction  to 
compel  an  account  and  payment  against  the  executor  of  the 
proceeds  of  the  real  estate  sold  by  him  under  the  power  con- 
tained in  the  will  of  his  testator  and  of  the  rents  and  profits 
of  such  real  estate  received  by  him  before  such  sale  under  it. 

In  behalf  of  the  appellant  it  was  insisted,  that  that  Court 
did  not  possess  any  jurisdiction  over  the  subject,  unless  it  was 
derived  from  2  7?.  S.  110,  §  57,  which  provides  that  ;'  where 
by  any  last  will,  a  sale  of  real  estate  shall  be  ordered  to  be 
made,  either  for  the  payment  of  debts  or  legacies,  the  Surro- 
gate in  whose  office  such  will  was  proved,  shall  have  power  to 
cite  the  executors  in  such  will  named,  to  account  for  the  pro- 
ceeds of  the  sales,  and  to  compel  distribution  thereof;  and  to 
make  all  necessary  orders  and  decrees  thereon,  with  the  like 
power  of  enforcing  them,  as  if  the  said  proceeds  had  been 


ALBANY,  JANUARY,  1848.  211 

Stagg  v.  Jackson. 

originally  personal  property  of  the  deceased  in  the  hands  of 
an  administrator." 

I  am  of  opinion  that,  independent  of  that  statute,  and  the 
provisions  of  §  75  of  the  statute  of  1837,  chap.  460,  the  Sur- 
rogate's Court  had  the  jurisdiction  claimed  hy  it.  By  the 
provisions  of  2  R.  S.  92,  §  52,  the  Surrogate  has  jurisdic- 
tion, upon  application  from  some  person  having  a  demand 
against  the  personal  estate  .of  the  deceased,  either  as  credit- 
or, legatee  or  next  of  kin,  &c. ;  or  without  such  application,  to 
compel  the  executor  or  administrator  to  render  an  account  of 
his  proceedings;  and  by  the  provision  of  2  R.  8.  p.  90, 
§§  45,  48,  p.  116,  §§  18,  19,  he  has  jurisdiction  to  de- 
cree payment  of  debts,  legacies,  and  distributive  shares 
against  the  executor  or  administrator,  in  the  following  cases : 

1.  Upon  the  application  of  a  creditor,  the  payment,  &c., 
may  be  decreed  at  any  time  after  six  months  shall  have  elaps- 
ed from  the  granting  of  the  letters  testamentary  or  of  ad- 
ministration. 

2.  Upon  the  application  of  a  legatee,  occ.,  payment  of  such 
legacy,  &c.,  may  be  decreed  and  enforced  at  any  time  after 
one  year  shall  have  elapsed  from  the  granting  such  letters. 

The  testator  by  his  will  devised  and  bequeathed  all  his 
estate,  real  and  personal,  to  his  executors,  their  heirs,  execu- 
tors, administrators  and  assigns,  as  joint  tenants  and  not  as 
tenants  in  common,  forever,in  trust  to  sell  the  same,  and  until 
such  sale,  to  receive  the  rents,  profits  and  income  thereof,  for 
the  purposes  of  his  will,  and  upon  the  following  trust :  First, 
to  invest  the  proceeds  of  the  real  and  personal  estate,  and  to 
pay  out  of  the  same  $50  annually,  for  the  maintenance  and 
education  of  his  daughter  Helena  and  his  son  Junius  Theo- 
dore, respectively,  until  they  should  attain  the  age  of  fifteen 
years,  over  and  above  their  respective  distributive  shares  of 
the  estate  and  the  income  thereof.  Secondly,  to  divide  the 
trust  fund  and  the  income  thereof,  subject  to  those  charges 
thereon,  into  nine  equal  parts,  and  to  pay  over  and  convey 
one  part  thereof  to  his  daughter  Anna  Matilda  and  her  heirs, 
one  equal  part  to  his  daughter  Mary  Elizabeth  and  her  heirs, 


212  CASES  IN  THE  COURT  OF  APPEALS. 


Stagg  v.  Jackson. 


and  one  equal  part  to  John  T.  the  appellant,  and  his  heirs ; 
to  hold  one  other  part  thereof  in  trust  for  his  daughter  Han- 
nah Augusta  Gautier,  and  to  hold  the  remaining  five  parts 
thereof  in  equal  shares  for  his  other  five  children,  Abraham, 
Benjamin  Charles,  Frederick,  Helena,  and  Junius  Theodore, 
who  were  then  minors,  as  in  the  next  clause  of  his  will  men- 
tioned. Thirdly,  to  hold  the  shares  of  such  minor  children 
respectively,  until  they  should  arrive  at  full  age,  and  then  to 
pay  over  the  same  to  them  or  their  heirs  or  assigns ;  and  dur- 
ing the  minority  of  each,  to  pay  so  much  of  the  income  of 
his  or  her  share,  for  his  or  her  support  and  education,  as  the 
executors  should  think  proper;  and  if  either  of  said  minor 
children  should  die  under  age  and  without  leaving  lawful  issue, 
the  will  directed  that  his  or  her  share  should  go  to,  and  be 
divided  among  the  surviving  children  of  the  testator  and 
the  issue  of  such  of  his  children  as  should  have  died  leaving 
children. 

By  these  provisions  it  is  manifest,  that  the  testator  intended 
that  his  whole  estate,  real  and  personal,  together  with  the 
rents,  profits,  and  income,  intermediate  the  sale,  should  become 
united  in  one  common  money  fund  for  the  sole  purpose  of 
division  and  distribution  among  the  objects  of  his  bounty ; 
and  upon  the  principle  of  equitable  conversion,  the  real  estate 
was  converted,  by  the  devise  and  direction  to  sell,  into  per- 
sonalty, from  the  death  of  the  testator;  the  money  arising 
from  the  sale  thereof  became  legal  assets  in  the,  hands  of  the 
executor  when  received  by  him,  and  for  which,  as  such  execu- 
tor, he  was  bound  to  account  as  personal  estate.  The  intent 
and  direction  of  the  testator  to  sell  the  land  was  absolute,  or 
"  out  and  out"  for  all  purposes.  The  discretion  of  the  execu- 
tor in  respect  to  the  sale  related  merely  to  the  time  when,  &c. 
(Bcgert  vs.  ffertell,  4  Hill  492  ;  Ram.  on  assets  206  ;  Leigh 
vs.  Dalsell,  on  Con.  of  Prop.  chap.  1, 2,  3  ;  Smith  vs.  Claxton, 
4  Jfa<£.484;  Marsha.  Wheeler,  2  Eden.  Oh.  R.  157;  Doughty 
vs.  Bull,  2  P.  Wms.  320 ;  beg  vs.  Deg,  Ib.  41f>,  1  Jarmin 
on  Wills,  chap.  19.) 

Mary  Elizabeth,  one  of  the  daughters  of  the  testator,  who 


ALBANY.  JANUARY.   1S48.  213 


Stagg  v.  Jackson. 


is  the  wife  of  Jackson,  is  a  legatee  of  one  ninth  of  the  whole 
estate,  real  and  personal,  including  the  rents,  profits,  and 
income  thereof  received  by  the  appellant,  subject  to  the  pay- 
ment of  the  debts  and  funeral  charges  of  the  testator  and 
expenses  of  the  administration,  and  the  directions  contained 
in  the  will.  I  agree  with  the  Chancellor  that  the  Surrogate 
was  right  in  the  sentence  and  decree  which  he  made  directing 
the  appellant  to  account  for  the  rents  and  profits  and  pro- 
ceeds of  the  sales  of  the  real  estate  as  well  as  the  personal 
effects  of  the  testator. 

2  R.  S.  618,  §  35,  authorises  the  Court  of  Chancery,  upon 
affirming  any  decree,  upon  appeal  from  a  Surrogate's  Court, 
to  that  Court,  in  its  discretion  to  award  damages  to  the  re- 
spondent for  the  delay  and  vexation  caused  by  such  appeal. 
That  discretion  was  exercised  by  the  Court  of  Chancery  on 
the  affirmance  of  the  decree  of  the  Surrogate  in  this  case,  and 
upon  correct  principles  as  I  think.  I  am  therefore  of  opinion 
that  the  decree  of  the  Court  of  Chancery  should  be  affirmed, 
and,  under  the  circumstances,  with  costs  to  be  paid  by  the 
appellant  personally. 

Ordered  accordingly. 


214 


CASES  IN  THE  COURT  OF  APPEALS. 


Brady  v.  McCosker. 


214 

B     HA    480 

2         '500 

dll2        108 

dl!2        '110 

166         '371 


BRADY,  Appellant,  vs.  McCosKER,  Respondent. 


A  Court  of  Equity  will  not  entertain  jurisdiction  to  set  aside  a  will  of  real  estate 
for  fraud,  or  on  the  ground  of  the  testator's  incompelency,  where  there  is  a  per- 
fect remedy  at  law,  and  the  objection  to  the  jurisdiction  is,  taken  in  due  season. 

But  where  the  party  claiming  in  hostility  to  the  will  is  not  in  possession,  and  an 
impediment  exists  which  would  prevent  a  recovery  at  law  of  the  whole  or  any 
part  of  the  estate  devised,  a  bill  in  equity  will  be  entertained  to  have  the  will 
declared  void  and  delivered  up  to  be  cancelled. 

Accordingly,  where  a  bill  was  filed  for  the  purpose  of  setting  aside  a  will  on  the 
ground  of  fraud  and  undue  influence,  and  it  appeared  that  at  the  filing  of  the 
bill  the  complainant  was  not  in  the  actual  possession  of  the  estate,  and  that  a 
trust  term  in  such  estate,  which  vested  the  legal  title  in  trustees,  was  yet  unex- 
pired,  so  that  no  recovery  could  be  had  in  ejectment ;  field,  that  a  demurrer  to 
the  bill  for  \vaut  of  jurisdiction  was  properly  overruled. 

So  also  it  is  a  good  answer  to  an  objection  for  want  of  jurisdiction,  that  a  part  cf 
the  estate  devised  is  subject  to  an  unexpired  lease,  under  which  the  lessee  or 
his  assignee  is  in  possession. 

And  where  the  bill  distinctly  shewed  the  existence  of  an  unexpired  trust  term, 
and  that  a  part  of  the  estate  was  occupied  by  the  assignee  of  an  unexpired 
lease,  and  the  other  parts  were  occupied  by  persons  under  an  agent,  who  had 
assumed  the  control  and  management  of  the  property  for  the  benefit  of  such 
party  as  should  be  entitled  thereto,  when  the  question  upon  the  validity  of  the 
will  should  be  settled ;  held,  that  an  objection  for  want  of  jurisdiction  would  not 
lie,  although  the  bill  in  another  place  alleged  that  the  complainant  was  entitled 
to  the  whole  estate  by  inheritance  in  fee  simple,  and  that  he  "held  and  was  in 
lawful  poiwsioii  tlirreof?  this  allegation  being  regarded  as  a  formal  legal  con- 
clusion from  the  facts  specifically  set  forth  in  the  other  parts  of  the  bill. 

The  complainant  claimed  half  of  I  he  estate  by  inheritance  from  his  father,  and  the 
other  half  by  inheritance  from  his  brother,  and  alleged  that  the  will  of  his 
brother  \vas  void  for  fraud,  &c. ;  but  in  case  the  will  should  be  adjudged  vald, 
then  he  still  claimed  one-half  of  the  estate,  and  insisted  that  he  was  entitled  to  a 
partition  ;  and  the  prayer  of  the  bill  was,  that  the  will  might  be  declared  void, 
or  that  a  partition  might  be  had;  luhi,  that  the  bill  did  not  make  a  case  for  par- 
tition, and  therefore  that  it  was  not  liable  to  objection  fjrmultifariousness. 
Where  a  party,  claiming  an  estate  by  inheritance,  files  a  bill  for  the  purpose  of  set- 
ting aside  a  will,  and  dies  pending  the  suit,  his  devisee  may  file  an  original  bill 
in  the  nature  of  a  bill  of  revivor  and  supplement,  ami  if  his  right  as  devisee  be 
admitted  or  established,  he  will  be  entitled  to  the  benefit  of  the  proceedings  in 
the  original  suit. 

A  person,  who  is  charged  with  fraudulently  procuring  the  execution  of  a  will  in 
favor  of  an  infant,  is  a  proper  party  to  a  bill  filed  for  the  purpose  of  selling  uMtie 
such  will,  although  he  has  no  interest.  lie  may  be  charged  wilh  the  co>ls. 


ALBANY,  JANUARY,  1848.  215 

Brady  v.  McCosker. 

Appeal  from  the  decree  of  the  Chancellor  affirming  that  of 
the  Vice  Chancellor  of  the  First  Circuit.  The  case  was  this  : 
John  McCosker,  the  elder,  died  on  the  26th  of  March,  1839, 
seized  of  certain  real  estate  in  the  city  of  New  York,  leaving 
his  sons,  John  and  Thomas,  his  only  children  and  heirs.  By 
his  will,  (among  other  things)  he  directed  his  executors  to  take 
possession  of  his  real  and  personal  estate,  and  to  receive  the 
rents  and  profits  of  the  real  estate  for  the  term  of  five  yearsj 
and  apply  the  same  to  the  payment  of  his  debts,  also  to  pay 
to  John  an  annuity  of  $200,  during  the  five  years,  and  a  like 
annuity  to  Thomas,  and  to  pay  the  balance  over  to  John  at 
the  expiration  of  the  five  years.  He  then  devised  the  real 
estate,  after  the  expiration  of  the  five  years,  to  John  during 
his  natural  life,  and  the  remainder  to  his  issue  in  fee,  and  di- 
rected that  John  and  his  heirs,  after  the  expiration  of  the  five 
years,  should  continue  the  annuity  to  Thomas  during  his  na- 
tural life.  One  of  the  executors  named  in  the  will  died  be- 
fore the  testator,  and  the  other  two  declined  to  accept  the  trust. 
John  died  in  1843  without  issue  and  unmarried. 

In  March,  1844,  Thomas,  the  surviving  son  of  the  testator, 
filed  his  bill  against  his  son,  John  Andrew  McCosker,  the  com- 
plainant in  this  suit,  and  against  Maria  L.  Brady,  J.  R,.  Bra- 
dy, and  J.  T.  Brady,  the  defendants  in  this  suit,  setting  forth 
the  above  facts,  and  claiming  that  on  the  death  of  John,  he 
(Thomas)  was  entitled  to  one-half  of  the  said  real  estate  as 
heir  of  his  father,  and  to  the  other  half  as  heir  to  his  brother 
John.  That  bill  also  stated  that  soon  after  the  death  of  John, 
the  younger,  the  defendant,  J.  T.  Brady,  propounded  to  the 
Surrogate  of  New  York,  for  proof,  a  paper  purporting  to  be 
his  will,  whereby  he  gave  one  or  two  legacies  and  annuities, 
and  all  the  rest  and  residue  of  his  estate  to  the  defendants, 
Maria  L.  and  J.  R.  Brady.  That  bill  also  charged,  that  the 
execution  of  such  will  was  fraudulently  and  improperly  pro- 
cured by  the  defendant,  J.  T.  Brady,  and  that  the  same  was 
null  and  void,  so  that  the  said  John  died  intestate  ;  that  he 
(Thomas)  opposed  the  proof  of  the  will  before  the  Surrogate, 
and  the  question  of  its  validity  was  still  pending  in  the  Sur- 


216  CASES  IN  THE  COURT  OF  APPEALS. 

Brady  r.  McCosker. 

rogate's  Court ;  that  the  will  was  a  cloud  upon  his  title,  and 
should  bo  declared  void  by  a  decree  of  the  Court  of  Chance- 
ry. It  appeared  also  from  that  bill  that  in  the  absence  of  the 
complainant  therein,  and  without  his  knowledge  or  consent, 
his  friends  had  entered  into  an  arrangement  with  J.  T.  Brady, 
who  assumed  to  act  for  Maria  L.  and  J.  R.  Brady,  whereby 
R.  Martin  was  to  take  the  control  and  management  of  the 
property,  and  receive  the  rents  and  profits  as  agent  for  who- 
ever might  be  entitled  thereto ;  that  the  said  real  estate,  which 
consisted  of  houses  and  lots,  was  in  the  hands  of  numerous 
occupants  as  tenants,  and  that  one  lot  was  yet  under  an  un- 
expired  lease  given  by  John,  the  younger,  in  his  life  time,  to 
C.  Maas.  whose  assignee  (Piper)  was  in  possession  under  that 
lease. 

That  bill  contained  an  allegation,  that  the  complainant 
therein  was  entitled  by  inheritance  as  aforesaid,  to  all  of  the 
said  real  estate  in  fee  simple,  and  he  "  then  held  and  was  in 
lawful  possession  thereof."  In  case  the  will  of  John,  the 
younger,  should  be  held  valid,  that  bill  insisted  that  he  (Tho- 
mas) was  still  seized  of  an  undivided  half  of  the  said  real 
estate  by  descent  from  his  father,  and  that  he  was  therefore 
entitled  to  a  partition  of  the  same.  The  prayer  of  the  bill 
was,  that  the  will  of  John  McCosker,  the  younger,  might  be 
declared  void  ;  or  in  case  it  should  be  held  valid,  that  a  par- 
tition might  be  made,  and  for  general  relief. 

The  several  defendants  in  that  bill  appeared  thereto.  John 
Andrew  McCosker  and  Maria  L.  Brady,  being  infants,  put  in 
general  answers  by  their  respective  guardians.  J.  R.  Brady 
also  answered  the  bill,  and  J.  T.  Brady  demurred.  A  repli- 
cation to  the  answer  of  J.  R.  Brady  was  filed,  and  then  Tho- 
mas McCosker,  the  complainant  in  that  suit,  died. 

In  October,  1844,  John  Andrew  McCosker  filed  the  bill  in 
this  cause  by  his  next  friend,  in  which  he  set  forth  the  filing 
of  the  said  bill  by  his  father  Thomas,  the  allegations  therein 
contained,  the  proceedings  in  that  suit,  and  the  death  of  his 
father,  averring  also  that  the  matters  stated  in  the  said  bill  of 
Thomas  were  true.  The  bill  in  this  suit  further  states,  that 


ALBANY,  JANUARY,  1848.  217 


Brady  v.  McCosker. 


the  said  Thomas  McCosker  devised  all  his  real  estate  to  the 
present  complainant,  including  the  lands  in  question  ;  that  the 
former  suit  had  abated  by  the  death  of  Thomas,  and  it  insists 
that  the  present  complainant  is  entitled  to  the  benefit  and  ad- 
vantage of  the  said  original  suit,  and  it  prays  the  relief  claimed 
in  that  bill.  The  defendants,  J.  T.  Brady  and  J.  R.  Brady, 
put  in  separate  demurrers  to  the  bill,  assigning  several  special 
causes  of  demurrer.  Their  demurrers  were  overruled  by  the 
Vice  Chancellor,  and  on  appeal  his  decision  was  affirmed  by 
the  Chancellor.  J.  T.  Brady  appeals  to  this  Court. 

E  iSanford,  for  appellant. 
Charles  O'Connor)  for  respondent. 

GARDINER,  J.  It  is  the  established  doctrine  of  a  Court  of 
Equity,  that  it  will  not  assume  jurisdiction  to  set  aside  a  will 
for  fraud,  or  on  the  ground  of  the  testator's  incompetency, 
where  there  is  a  perfect  remedy  at  law,  and  where  the  objec- 
tion to  the  jurisdiction  is  taken  in  proper  season.  (2  Paige 
399 ;  3  Br.  P.  C.  358 ;  7  Price  663 ;  Jacob  R.  466 ;  1  Mad. 
Oh.  85.) 

As  the  jurisdiction  of  the  Court  of  Chancery,  according  to 
the  rule  above  mentioned,  depends  upon  the  inadequacy  of  the 
legal  remedy,  the  bill  must  state  the  impediment  to  relief  in 
a  Court  of  law.  (Pemberton  vs.  Pemberton,  13  Ves.  ;  Jones 
vs.  Jones,  3  Meriv.  166  and  note.)  If  the  impediment  relates 
only  to  a  part  of  the  real  estate  embraced  in  the  will,  it  would 
seem  to  be  sufficient  to  confer  jurisdiction.  As  to  the  part 
thus  incumbered,  the  complainant  would  have  an  undoubted 
right  to  the  aid  of  a  Court  of  Equity,  (Story's  Eq.  Jurisdio. 
§  33,)  and  the  jurisdiction  thus  acquired  would  upon  general 
principles  be  retained,  in  order  to  prevent  a  multiplicity  of 
suits,  and  to  afford  complete  relief  to  the  parties.  (2  John-. 
Cas.  424;  10  J.  R.  587;  17  do.  384;  1  WJieaton  197.) 

In  the  second  place,  the  form  of  the  negative  plea  to  the 
jurisdiction  of  the  Court,  and  of  the  order  for  an  injunction 


218  CASES  IN  THE  COURT  OF  APPE..  LS. 


Brady  v.  McCmlcer. 


in  those  CUDM  where  an  issue  of  devisavit  vel  non  is  proper  to 
be  awarded,  leads  to  the  same  conclusion. 

The  allegation  of  the  plea  is  general,  that  the  obstruction 
to  the  legal  remedy  charged  in  the  bill,  applies  to  "  none  of 
the  real  estates  which  are  subjects  of  controversy.  (Armitage 
vs.  Wadsworth)  1  Mad.  111.)  And  the  usual  order  for  in- 
junction, restraias  the  defendant  from  setting  up  any  lease, 
outstanding  term,  &c.,  to  defeat  the  plaintiff's  claim,  in  any 
issue  or  action  dh  ected  by  the  Court  for  the  recovery  of  any 
of  the  real  estate,  pr  the  rents  and  profits  thereof.  (3  Meri- 
vale  172.) 

The  complainant  alleges  that  at  the  time  of  filing  the  ori- 
ginal bill  by  Thomas  McCosker,  the  whole  premises  were  sub- 
ject to  the  unexpired  trust  term  created  by  the  will  of  John 
McCosker,  the  elder,  and  part  of  them  to  an  unexpired  lease 
executed  by  John  McCosker,  the  younger,  on  the  28th  of 
February,  1842,  to  Carston  Maas,  for  three  years  from  the 
first  day  of  May  following,  which  lease  had  been  duly  assign- 
ed to  Julius  Piper,  one  of  the  defendants.  The  trust  estab- 
lished by  the  will  of  John  McCosker,  the  elder,  for  the  pay- 
ment of  an  annuity  of  $200  to  Thomas  McCosker  during  his 
natural  life,  was  a  valid  trust  under  the  third  subdivision  of 
the  55th  section  R.  S.,  1  vol.,  page  729.  The  language  of 
which  is  that  "  express  trusts  may  be  created  to  receive  the 
rents  and  profits  of  lands,  and  apply  them  to  the  use  of  any 
person,  during  the  life  of  such  person,  or  for  any  shorter 
term."  By  the  60th  section,  the  whole  estate  in  law  and  equi- 
ty is  vested  in  the  trustees.  If  the  trust  was  invalid,  then 
the  lease  passed  the  interest  of  John  McCosker,  the  younger, 
to  Casston  Maas,  who  was  in  actual  possession  at  the  filing  of 
the  bill,  paying  rent  according  to  said  demise  to  Robert  Mar- 
tin, as  agent  for  the  parties  who  might  be  entitled  to  the  same. 
These  facts  are  distinctly  alledged  in  the  bill,  and  admitted 
by  the  demurrer,  and  jwima  facie  they  present  an  insupera- 
ble obstacle  to  a  recovery  at  law.  If  the  trust  was  within  the 
statute,  ejectment  would  not  lie  for  any  part  of  the  premise •.- ; 
if  it  was  not,  then  it  could  not  be  maintained  against  the  as 


ALBANY,  JANUARY,  1848.  219 


Brady  v.  McCosker. 


slgnee  of  Maas  by  the  complainant,  who  claims  as  to  all  the 
interest  in  controversy,  through  John  McCosker,  the  lessor. 
No  suit  could  be  sustained  against  Martin  because  he  received 
the  rents  as  a  receiver,  constituted  with  the  assent  of  both 
parties,  for  whoever  might  ultimately  be  entitled  to  it.  He 
was  a  mere  stake-holder,  and  if  sued,  could  compel  the  parties 
to  interplead  and  settle  the  right  by  the  decree  of  a  compe- 
tent tribunal. 

Assuming  that  the  impediments  to  the  legal  remedy  were 
such  as  to  entitle  Thomas  McCosker  to  relief  in  equity,  when 
he  filed  the  original  bill,  it  cannot  be  seriously  .questioned 
that  the  complainant  succeeded  to  his  rights  in  this  respect, 
and  is  entitled  to  continue  the  suit,  if  it  was  properly  com- 
menced. (Barbour,  Ch.  P.  82.) 

The  complainant  claims  as  devisee  through  his  father.  Not 
succeeding  to  the  rights  of  the  decedent  by  mere  operation 
of  law,  he  could  not  file  a  bill  of  revivor,  but  could  only  have 
the  benefit  of  the  original  proceedings,  and  avail  himself  of 
the  new  facts  necessary  to  be  stated  by  an  original  bill,  in  the 
nature  of  a  bill  of  reviver  and  supplement.  ( Welford,  Oh. 
Pr.  220,  222 ;  Barbour  Ch.  Pr.  64  and  82.) 

This  has  been  done,  but  it  is  alleged  that  the  complainant 
being  a  defendant  in  the  original  suit,  could  not  revive  it  until 
after  a  decree  giving  him  an  interest  in  its  continuance. 
(1  Barbour  41.) 

This  would  be  true  if  tue  complainant  sought  to  revive  as 
a  defendant,  or  as  the  representative  of  a  defendant.  But  he 
has  succeeded  to  the  right  of  his  father  the  plaintiff  in  the 
original  suit,  and  claims  the  benefit  of  that  suit  by  virtue  of 
such  succession.  This  distinction  is  sufficiently  obvious,  and 
is  recognised  in  Soullard  vs.  Dias,  9  Paige  394,  to  which  we 
have  been  referred  by  the  counsel  of  the  defendant. 

The  main  question  is  whether  the  present  and  former  com- 
plainants, have  not  precluded  themselves  by  their  own  alle- 
gations from  any  relief  whatever  in  Chancery.  Thomas 
McCosker  by  the  original  bill,  "claimed  to  be  and  charged 
that  he  was  (JFol  72)  entitled  by  inheritance  as  aforesaid,  to 


220  CASES  IN  THE  COURT  OF  APP£  \LS. 


Brady  v.  McCosker. 


all  the  lands,  tenements,  and  hereditaments,  and  every  part 
and  parcel  thereof,  in  fee  simple,  and  that  he  then  held  and 
was  in  lawful  possession  thereof."  I  thought  upon  the  argu- 
ment that  this  statement  was  an  insuperable  obstacle  to  any 
relief  in  Chancery,  unless  indeed  the  aid  of  that  Court  could 
be  invoked  in  order  to  remove  a  cloud  from  the  title  of  the 
complainant.  But  upon  a  more  particular  examination  of  the 
bill,  I  am  satisfied  that  my  first  impressions  were  erroneous. 
The  bill  alleges  that  the  premises  in  question  consisted  of  two 
lots  of  land,  with  several  dwelling  houses  thereon,  in  which 
before,  and  at  the  time  of  the  death  of  John  McCosker  the 
younger,  and  at  all  times  since,  there  were,  and  at  the  time  of 
filing  the  said  original  bill  still  were,  numerous  occupants  in 
humble  condition,  &c.,  from  whom  little  or  nothing  could  be 
obtained,  unless  some  one  with  the  right  and  powers  of  a 
landlord,  and  standing  in  that  relation  should  collect  the 
rents,  &c.  ;  that  Julius  Piper  was  in  possession  of  the  pro- 
perty devised  to  Maas  at  the  filing  of  the  bill,  paying  rent  to 
Martin,  &c.  It  is  further  stated,  that  in  consideration  of  the 
importance  of  securing  some  immediate  control  over  said  pro- 
perty, in  order  to  prevent  waste,  and  secure  the  collection  of 
rents,  some  friends  of  the  complainant  without  his  knowledge 
or  consent,  united  with  J.  T.  Brady,  acting  in  behalf  of  those 
claiming  under  the  will  of  John  McCosker  the  younger,  in  a 
request  to  Martin  to  assume  the  control  of  the  property  and 
receive  the  rents  as  agent  for  whoever  might  be  entitled  to 
them,  that  Martin  did  so,  that  the  uncertain  nature  of  his 
power,  produced  great  embarrassment.  It  is  further  alleged 
that  the  complainant  Thomas  McCosker  was  destitute  of  any 
means,  or  property,  except  what  he  might  be  entitled  to  from 
the  estates  of  his  father  and  brother.  That  no  part  of  his 
annuity  had  been  paid  to  him  since  his  brother's  death, 
although  he  had  received  an  equal  sum  from  Martin.  The 
bill  then  denies  that  the  defendants  are  in  the  receipt  of  the 
rents  and  profits  of  said  premises  or  any  part  thereof  (Fol.  71) 
or  are  in  the  occupation  thereof ;  but  that  the  same  arc  in  tlio 
occupation  of  persons  residing  thereon.  Now  these  allcga- 


ALBANY,  JANUARY,  1848.  221 


Brady  v.  McCosker. 


tions  are  utterly  inconsistent  with  the  statement  that  the 
complainant  "  then  held  and  was  in  the  lawful  possession  of 
said  premises,"  if  by  that  we  are  to  understand  any  thing 
more  than  a  legal  seizure.  The  bill  informs  us  that  the  whole 
legal  and  equitable  estate  was  vested  in  trustees,  or  in  the 
Court  of  Chancery,  that  the  assignee  of  Maas  was  in  posses- 
sion of  the  house  demised  to  him,  and  who  were  the  actual 
occupants  of  other  parts  of  the  real  estate ;  the  person  that 
was  actually  in  the  receipt  of  the  rents  and  profits,  and  the 
nature  of  his  authority,  which  was  to  receive  them  as  agent 
for  whoever  might  be  entitled  to  them.  The  effect  of  the 
averment  under  consideration,  read  in  connection  with  what 
has  been  quoted  from  other  parts  of  the  bill,  is  only  that  the 
complainant  Thomas  McCosker  was  then  entitled  by  inherit- 
ance as  aforesaid,  to  all  the  lands,  tenements,  and  heredita- 
ments, in  fee  simple,  and  that  he  therefore  held  and  was  in 
lawful  possession  thereof.  In  other  words  it  is  a  formal  legal 
conclusion  from  the  facts  previously  stated. 

It  is  also  objected  that  the  bill  is  multifarious.  Multifari- 
ousness,  as  the  term  is  generally  understood,  applies  to  bills 
in  which  there  is  a  misjoinder  of  distinct  and  independent 
causes  of  action.  Or  secondly,  where  the  party  has  no  inter- 
est in  the  subject  in  litigation ;  and  lastly,  where  one  or  a 
part  of  the  defendants,  is  able  to  say  that  he  is  brought  as  a 
party  upon  a  record,  with  a  large  portion  of  which,  and  the 
case  made  thereby,  he  has  no  connection  whatever.  (1st 
Mylne  &  Craig,  603.) 

The  two  first  propositions  refer  to  cases  of  misjoinder.  The 
last  to  multifariousness,  strictly  so  called.  (Mylne  vs.  Craig, 
603,  Jac.  R.  141;  Harrison  vs.  Hogg,  2  Vtsey  323,  Story's 
Eq.  §  271,  279,  280.) 

There  is  no  misjoinder  of  actions  in  this  case  ;  for  the  bill 
is  not  properly  framed  for  partition.  The  plaintiff  alleges, 
that  he  is  entitled  to  all  the  real  estate  by  inheritance  from 
his  father,  and  John  McCosker  the  younger,  and  that  the  will 
through  which  alone  the  defendants  claim  title  to  any  part  of 
the  property  is  null  and  void. 


222  CASES  IN  THE  COURT  OF  APPEALS. 


Brady  v.  McCosker. 


Partition  implies  an  interest  in  different  persons  in  the  pro- 
perty to  be  divided.  When  a  complainant  not  only  claims 
the  whole,  but  negatives  the  title  of  the  defendant  to  any 
part,  the  bill  may  be  defective,  but  is  certainly  not  obnoxious 
to  the  objection,  that  a  case  for  partition  as  a  distinct  and 
independent  cause  of  action  is  thereby  established.  Whatever 
therefore  may  have  been  the  intention  of  the  pleader,  the  bill 
must  be  treated  as  single.  (Story  Eq.  §  288,  1  Sign,  and 
Stuart  61.) 

There  is  no  misjoinder  of  parties.  James  T.  Brady  was  a 
proper  party  to  the  bill,  for  the  reason  suggested  by  the  Chan- 
cellor. In  Boule  vs.  Stewart,  1  Schoale  and  Lefroy  227,  a 
Solicitor  was  made  a  party  for  assisting  his  client  in  obtain- 
ing a  release.  He  had  no  interest  in  the  matters  in  contro- 
versy. It  was  insisted,  that  he  acted  merely  in  his  capacity 
as  Solicitor.  Lord  Redesdale  said  he  was  properly  made  a 
party,  and  ought  to  be  chargeable  with  costs  so  far  as  they 
reloted  to  the  release,  in  case  they  could  not  be  recovered  of 
his  client.  (Story  Eq.  §  232.) 

Assuming  the  truth  of  the  facts  charged  in  the  bill,  as  we 
must  for  the  purpose  of  this  decision,  the  infant  defendant 
Maria  L.  Brady  ought  not  to  be  charged  with  costs  in  any 
event.  She  had  no  agency  in  procuring  the  Will,  and  is 
incapable  of  ratifying  or  confirming  the  acts  of  others. 

The  demurrer  of  the  defendant  Brady,  is  to  the  whole  bill, 
and  can  only  be  sustained  by  establishing  a  misjoinder  of 
actions,  or  parties,  to  which  species  of  multifariousness  it  is 
alone  adapted.  (  Story  Eq.  PL  §  284,  1  Mylne  and  Craig, 
603;  ZAnstr.  469.) 

If  the  bill  is  defective  in  praying  for  a  partition,  or  con- 
tains irrelevant  matter  unconnected  with  the  case  properly 
presented,  the  demurrer  should  be  confined  to  the  parts  really 
objectionable  and  not  extended  to  the  whole  bill.  It  was 
therefore  properly  overruled  by  the  Chancellor,  and  the 
decree  should  be  affirmed. 

RUOOLES,  JONES,  JOHNSON  and  WKIGIIT,  Js.,  concurred. 


ALBANY,  JANUARY,  1848.  223 


Cornes  v  Harris. 


BRONSON,  J.  and  GKAY,  J.,  delivered  opinions  in  favor 
reversing  the  decree,  with  whom  JEWETT,  C.  J.,  concurred. 

Decree  affirmed. 


CORNES  vs.  HARRIS. 

In  the  Common  Law  action  by  writ  of  nuisance,  as  retained  and  regulated  by  the 
Revised  Statutes,  it  seems  that  the  declaration  must  shew  that  the  plaintiff  has 
a  freehold  estate  in  the  premises  affected  by  the  nuisance.  This  is  a  real  action. 

But  in  an  action  on  the  case  for  damages  merely,  sustained  in  consequence  of  the 
erection  of  a  nuisance,  it  is  enough  that  the  plaintiff  is  in  possession  of  the  pre- 
mises affected  thereby. 

The  form  of  an  action  is  determined  by  the  matter  set  forth  in  the  declaration,  and 
not  by  the  name  which  the  plaintiff  may  give  it.  If,  therefore,  the  pleader,  in 
the  commencement  of  a  declaration,  gives  the  action  a  wrong  name,  it  will  do 
no  harm. 

The  plaintiff  commenced  his  action  by  writ  of  nuisance  pursuant  to  the  statute. 
(2  R,  S.  332.)  The  formal  commencement  of  the  declaration  was  appropriate 
to  that  action  and  referred  to  the  writ;  but  the  declaration  contained  no  aver- 
ment that  the  plaintiff  had  a  freehold  estate  in  the  premises  affected  by  the 
nuisance.  It  shewed,  however,  a  good  cause  of  action  on  the  case,  and  conclu- 
ded thus,  "to  the  nuisance  of  said  dwelling  house  and  premises  of  the  plaintiff 
and  to  his  damage  of  five  thousand  dollars",'  helcl,lhal  it  was  a  good  declaration 
in  an  action  on  the  case,  although  it  shewed  no  ground  of  recovery  in  the  action 
of  nuisance  proper ;  and  therefore,  that  the  Supreme  Court  was  right  in  deny- 
ing a  motion  made  after  verdict  in  arrest  of  the  judgment. 

Harris  commenced  an  action  against  Cornes  in  the  Supreme 
Court  by  writ  of  nuisance  in  the  form  prescribed  by  ^2  R.  S. 
332,  §  3.  The  declaration  afterwards  put  in  commenced  thus : 
"  Oneida  County,  ss.  George  Cornes  was  summoned  by  writ 
according  to  the  form  of  the  statute  in  such  case  provided,  to 
answer  Oliver  Harris  in  a  plea  of  nuisance,  wherefore  he  hath 
raised  a  certain  slaughter  house,  and  divers  cattle  pens,  hog 
pens,  &c. ;  and  thereupon  the  said  Oliver  Harris  by,  &c.,  com- 
plains of  the  said  George  Cornes  :  For  that,"  &c.  The  de- 
claration then  went  on  to  state  that  the  plaintiff  was  possessed 
of  a  certain  dwelling  house  and  premises  at  Sangersfied,  Onei- 


223 

s      HA     595 
3          «155 


224  CASES  IN  THE  COURT  OF  APPEALS. 

Cornea  v.  Harris. 


da  county,  which  he  inhabited  with  his  family ;  that  the  de- 
fendant was  also  possessed  of  certain  premises  contiguous  to 
those  of  the  plaintiff,  and  contriving,  &c.,  on  &c.,  and  on 
divers  other  days  erected  on  his  premises  a  slaughter  house, 
and  cattle  pens,  hog  pens,  &c.,  and  kept  therein  and  slaugh- 
tered large  numbers  of  cattle,  hogs,  &c.,  thereby  causing  nox- 
ious and  offensive  smells,  and  loud  and  offensive  noises,  and 
tainting  and  corrupting  the  atmosphere,  so  as  to  render  the  dwel- 
ling house  and  premises  of  the  plaintiff  unfit  for  habitation. 
There  was  no  averment  in  either  of  the  counts  that  the  plain- 
tiff was  seized  in  fee  of  the  premises  occupied  by  him,  or  that 
he  had  a  freehold  estate  therein.  The  conclusion  was  in  these 
words :  "  to  the  nuisance  of  the  said  dwelling  house  and  pre- 
mises of  the  said  plaintiff,  and  to  his  damage  of  five  thousand 
dollars,  and  therefore  he  brings  suit,  &c." 

The  defendant  pleaded  not  guilty,  and  on  trial  at  the  Cir- 
cuit a  verdict  was  had  for  the  plaintiff  for  two  hundred  and 
fifty  dollars  damages.  The  defendant  moved  in  the  Supremo 
Court  to  arrest  the  judgment,  which  motion  was  denied  and 
judgment  rendered  for  the  plaintiff  for  the  above  sum  as  dama- 
ges, and  the  costs  of  suit.  There  was  no  judgment  that  the  nui- 
sance be  removed.  The  defendant  removed  the  record  to  this 
court  by  writ  of  error,  and  upon  an  allegation  of  diminution 
in  the  record  and  writ  of  certiorari,  caused  the  writ  of  nui- 
sance by  which  the  suit  was  commenced,  and  the  rule  of  the 
Supreme  Court  denying  the  motion  in  arrest  to  be  certified 
to  this  court. 

W.  Tracy,  for  plaintiff  in  error  insisted  :  (1.)  The  action 
is  the  Common  Law  assize  of  nuisance  as  modified  by  the  pro- 
visions of  the  Revised  Statutes,  but  not  modified  by  any  other 
statute,  or  rules  of  pleading  or  practice.  (2.)  The  writ  of 
nuisance  could  only  be  maintained  by  the  owner  of  the  free- 
hold affected  by  the  nuisance,  and  the  Revised  Statutes  have 
made  no  change  in  the  action  in  this  respect.  (35/.  Comm. 
220,  221,  222  ;  1  Com.  Dig.  Assize,  J5.  4  £.  5  ;  1  Eollc  271.) 
(3.)  The  declaration  is  bad  therefore  in  substance,  for  not 
averring  that  the  plaintiff  OAvned  the  premises  affected  by  tho 


ALBANY,  JANUARY,  1848.  225 

Comes  v.  Harris. 

nuisance  as  his  freehold,  and  that  the  defendant  erected  the 
nuisance  to  its  injury ;  and  the  defect  is  not  cured  by  the  ver- 
dict. (2  Cowper  825;  Graham  Pr.  2d  Ed.  657  and  the 
cases  there  cited;  1  Term.  Rep.  470 ;  5  Barn  $  Adol  27  ;  1 
Johns.  380 ;  10  Do.  369.)  (4.)  Each  of  the  counts  in  the 
declaration  being  defective  in  substance,  and  showing  no  title 
to  recover,  the  Supreme  Court  erred  in  denying  the  motion, 
in  arrest.  (G-raham  Pr.  641,  and  the  cases  there  cited.}  (5.) 
Our  conclusion  cannot  be  avoided  by  calling  the  action  any 
thing  else  than  a  writ  of  nuisance.  It  is  that  or  nothing.  It 
is  commenced  by  the  writ  provided  by  the  statute.  The  de- 
claration recites  the  original  as  a  declaration  in  that  action 
should,  and  it  concludes  as  well  as  commences  in  nuisance. 
The  difficulty  is  that  if  the  declaration  be  true  in  every  par- 
ticular it  does  not  authorize  a  recovery  in  that  action.  It  is 
not  an  action  on  the  case  for  a  nuisance,  which  could  only  be 
commenced  by  capias  or  by  declaration.  It  is  a  real  action, 
as  such  known  to  the  Common  Law  and  expressly  retained  by 
the  Revised  Statutes,  and  being  so  regarded,  the  fatal  defect 
is,  that  the  plaintiff  in  his  declaration  shows  no  interest  in  the 
premises,  which  authorizes  him  to  maintain  it.  (6.)  The  plea 
of  the  defendant  taking  issue  upon  the  declaration  did  not 
cure  its  defects.  If  the  declaration  be  bad  in  substance,  the 
plea  cannot  make  it  good. 

C.  P.  Kirkland,  for  defendant  in  error  insisted  :  (1.)  The 
declaration  in  this  cause  is  in  case  for  nuisance,  a  mere  per- 
sonal action.  (2  Chit,  pi  769  to  776,  Phil.  Ed.  1828.)  (2.)  It 
can  not  be  in  the  real  action  of  nuisance,  as  it  omits  the  dis- 
tinguishing and  vital  feature  of  that  action,  viz :  the  averment 
of  freehold  or  seizin  in  fee  in  plaintiff  and  defendant.  (Hast. 
Ent.  441 ;  Yates  PL  520,  521 ;  2  R.  S.  257.  §  3  ;  3  Christ 
Bl.  220  ;  16  Vin.  Ab.  22,  Nuisance  D  ;  Fitz  :  N.  B.  183,  4, 
5  ;  2  Saund  PI  and  Ev.  229,  (686  ;)  1  Com.  Dig.  306,  (D. 
1 ;)  3  Ch.  BL  222  ;  16  Vin.  33,  Nuisance,  (K.  2  ;)  2  R.  S. 
256,7,  §  7).  (3.)  The  plea  is  the  proper  plea  in  the  personal 
action,  not  in  the  real.  (Jacks.  Tr.  Real  Prop.  :  app.  360 
362.)  (4.)  The  statement  in  the  prefatory  part  of  the  decla- 

29 


226  CASKS  IN  THE  COURT  OF  APPEALS. 


Curnes  v.  Harris. 


ration,  as  to  the  manner  in  which  the  defendant  below  was 
brought  into  court,  is  perfectly  immaterial.  It  may  have  been 
good  ground  of  special  demurrer,  but  nothing  more.  (5.)  The 
only  mode  of  taking  advantage  of  a  variance  between  the  writ 
and  declaration,  as  not  being  in  the  same  action,  was  by  motion 
to  set  aside  the  declaration  for  irregularity.  (1  Wend  305  ; 
4  J,  R.  484  ;  12  Wend.  271.)  (6.)  It  is  not  pretended  that  in 
this  action,  as  stated  in  the  declaration,  the  plaintiff  is  or  pos- 
sibly could  be  entitled  to  the  judgment  of  removal  given  by 
the  statute  in  the  real  action  of  nuisance.  No  such  judgment 
has  been  asked  for  or  rendered  :  but  the  plaintiff  was  entitled 
to  his  judgment  on  the  verdict  for  his  damages  with  costs  as 
in  any  other  personal  action  :  and  this  is  the  judgment  and  the 
only  judgment  that  has  been  rendered.  (7.)  The  plaintiff  in 
error  neither  has  nor  pretends  to  any  merits — his  ground  is 
purely  and  merely  technical ;  and  he  could  have  availed  him- 
self of  it  only  as  a  matter  of  practice  by  motion  to  set  aside 
the  declaration  for  a  technical  variance.  (2  R.  S.  344,  &  7, 
sub.  4,  (2d  ed.) 

BRONSON,  J. — If  this  is  the  old  assise  of  nuisance,  there  fe 
no  doubt  but  that  the  declaration  is  insufficient  and  the  judg- 
ment erroneous.  But  if  it  is  an  action  on  the  case,  it  is 
equally  clear  that  the  declaration  is  sufficient  and  the  judg- 
ment right.  On  the  motion  in  arrest  of  judgment  the  Supreme 
Court  held,  and  we  think  very  properly,  that  it  was  an  action 
on  the  case.  The  defendant  insists  that  it  is  a  writ  of  nui- 
sance because  the  plaintiff  has  given  the  action  that  name  in 
the  commencement  of  the  declaration ;  and  because  a  writ  of 
nuisance  seems  to  have  been  issued  to  bring  the  defendant 
into  court. 

It  is  not  necessary  to  mention  the  form  of  the  action  in  the 
commencement  of  the  declaration  ;  arid  if  the  pleader  gives  it 
a  wrong  name  it  will  do  no  harm.  The  form  of  the  action  is 
determined  by  the  matter  set  forth  in  the  declaration,  and 
not  by  the  name  which  the  plaintiff  may  give  it.  (Seneca 
Road  Comp.  vs.  Auburn  11.  It.  Comp.  5  JliUVll ;  Andcr- 


ALBANY,  JANUARY,  1848.  227 


Comes  v.  Harris. 


son  vs.  Thomas,  9  Bing.  678;  Lord  vs.  Houston,  11 
62 ;  2  CA#.  JFV.  12  wote  (e.)  Ed.  of  '37  #raA.  Prac.  202.) 
Disregarding,  as  we  must,  the  misnomer,  this  is  a  very  good 
declaration  in  an  action  on  the  case. 

Now  as  to  the  writ.  It  is  not  a  matter  of  any  importance 
how  the  defendant  came  into  court — whether  he  was  served 
with  a  writ,  capias,  or  declaration ;  or  whether  he  appeared 
voluntarily  without  process  of  any  kind.  It  is  enough  that 
he  appeared  and  pleaded  to  the  declaration  in  an  action  of 
which  the  court  had  jurisdiction.  He  cannot  afterwards  ob- 
ject, not  even  by  motion,  that  he  was  not  regularly  brought 
into  court,  or  that  the  declaration  varies  from  the  process. 
The  principle  is  a  familiar  one.  If  the  defendant  had  moved, 
before  pleading,  to  set  aside  the  declaration  for  variance  from 
the  original,  the  motion  would  probably  have  been  denied. 
(Me  Farland  vs.  Townsend,  17  Wend.  440.)  And  clearly  the 
Supreme  Court  had  nothing  to  do  after  verdict,  when  the 
motion  in  arrest  was  made,  with  the  manner  in  which  the  de- 
fendant was  brought  into  court,  or  with  any  supposed  vari- 
ance between  the  writ  and  the  declaration. 

We  are  all  of  opinion  that  the  judgment  should  be  affirmed. 

Judgment  affirmed. 


228  CASES  IN  THE  COURT  OF  APPEALS. 


Grade  v.  Freeland. 


-  228 —       GRACIE,  Appellant,  vs.  FREELAND  and  others  Respondents. 

1  '424 

j_o.       An  appeal  will  not  lie  to  the  Court  of  Appeals  from  a  decision  made  in  the  Su 

el  2  '409         preme  Court  by  one  Justice  at  a  special  term. 

88  *115     A  party  complaining  of  any  order  made  at  a  special  term,  has  a  right  to  have  the 

3  AbD  498;        matter  re-heard  and  passed  upon  by  the  Supreme  Court,  at  a  general  term. 

The  appellant,  Gracie,  who  was  complainant  in  the  Supreme 
Court,  appealed  to  this  Court  from  an  order  in  an  equity  cause, 
made  by  one  of  the  Justices  of  the  Supreme  Court  while  hold- 
ing a  special  term.  No  re-hearing  of  the  matter  had  been 
had  or  applied  for  at  a  general  term  of  the  Supreme  Court. 

A.  L.  Jordan,  Attorney  General,  for  the  respondents, 
moved  to  dismiss  the  appeal  on  the  ground,  among  others,  that 
an  appeal  to  this  Court  would  only  lie  from  a  decree  or  order 
made  by  the  Supreme  Court  at  a  general  term. 

R.  W.  PeckJiam,  for  the  appellant. 

BRONSON,  J.  This  is  an  appeal  from  an  order  in  an  equity 
cause,  made  by  one  of  the  Justices  of  the  Supreme  Court  while 
holding  a  special  term  ;  and  there  has  been  no  re-hearing  and 
order  upon  the  matter  by  the  Supreme  Court  in  general  term. 
A  motion  is  made  to  dismiss  the  appeal,  on  the  ground  that 
an  appeal  will  only  lie  from  the  decrees  and  orders  of  the  Su- 
preme Court,  in  equity  causes,  made  at  the  general  term. 

It  is  difficult  to  suppose  that  the  Legislature,  if  it  has  the 
constitutional  power  to  do  so,  has  provided  that  all  equity 
causes  shall  be  first  heard  at  a  special  term  before  a  single 
Judge ;  and  has  then  given  an  appeal  to  this  Court,  before 
the  matter  has  been  heard  and  determined  by  the  Supreme 
Court  in  general  term,  where  there  must  be  three  Judges.  It 
is  not  to  be  presumed  that  the  Legislature  intended  the  par- 
ties should  go  to  the  Court  of  last  resort,  before  they  had  ob- 
tained the  judgment  of  the  full  bench  in  the  Court  where  the 


ALBANY,  JANUARY,  1848.  229 


Gracie  v.  Freeland. 


proceedings  were  instituted.  We  ought  to  find  unequivocal 
words  to  that  effect,  before  we  give  such  a  construction  to  the 
statute.  But  so  far  from  finding  such  words,  I  think  the  Le- 
gislature evidently  intended  there  should  be  a  re-hearing  at 
the  general  terra,  before  there  could  be  an  appeal  to  this 
Court. 

The  judiciary  act  authorizes  appeals  to  this  Court  from  the 
orders  and  decrees  of  the  Supreme  Court  "  organized  by  this 
act,"  without  expressly  specifying  either  branch  of  that  Court. 
(Stat.  184T,  p.  321,  §§  10,  11.)  But  the  20th  section  pre- 
scribes the  manner  in  which  the  causes  shall  be  disposed  of  in 
the  Supreme  Court,  which  is  as  follows :  "  All  suits  and  pro- 
ceedings in  equity,  in  said  Supreme  Court,  shall  be  first  heard 
and  determined  at  a  special  term  of  said  Court,  unless  the 
Justice,  holding  such  special  term,  shall  direct  the  same  to  be 
heard  at  a  general  term ;"  and  when  "heard  and  determined 
at  a  special  term,  either  party  may  apply  at  a  general  term 
for  a  re-hearing."  It  will  be  seen  that  two  things  are  here 
mentioned ;  first,  a  hearing  and  determination  at  a  special 
term,  and  then  an  application  for  a  re-hearing  at  a  general 
term.  Both  of  these  things  must  be  done  before  the  Supremo 
Court  has  got  through  with  the  cause,  and  put  it  in  a  condi- 
tion to  be  carried  to  an  Appellate  Court.  If  this  be  not  so; 
if  the  cause  may  go  by  appeal  from  the  special  term  directly 
to  the  Court  of  Appeals,  then  there  may  be  an  application  to 
the  Supreme  Court,  at  general  term,  for  a  re-hearing,  after 
the  cause  has  gone  to  the  Court  of  Appeals ;  and,  indeed, 
after  that  Court  has  heard  and  decided  the  case.  No  one  can 
suppose  that  such  was  the  intention  of  the  Legislature. 

Although  the  statute  only  says,  the  party  "  may  apply  at 
a  general  term  for  a  re-hearing,"  I  think  he  has  the  right  to 
have  his  causa  heard  and  decided  there  ;  and  that  he  cannot 
be  turned  away  by  simply  denying  the  motion,  nor  by  order- 
ing a  re-hearing  at  the  special  term. 

The  application  for  a  re-hearing  for  which  the  statute  pro- 
vides, is  not  precisely  the  same  thing  in  tlio  attending  circum- 
stances as  a  motion  for  a  re-hearing  in  Chancery.  In  that 


230  CASES  IN  THE  COURT  OF  APPEALS. 

Oracle  r.  Freeland. 

Court,  the  motion  is  almost  invariably  addressed  to  the  sa;ne 
officer  who  made  the  decree,  and  who  is  consequently  prepa- 
red to  decide  at  once,  and  without  any  extended  discussion  or 
examination  upon  the  propriety  of  granting  the  application. 
But  under  the  present  judiciary  system,  the  motion  is  not  to 
be  heard  at  the  special  term,  where  the  decree  was  made,  but 
at  the  general  term,  where  a  majority,  at  the  least,  of  the 
Judges,  will  be  strangers  to  the  cause,  and  consequently  can- 
not be  prepared  to  make  a  proper  disposition  of  the  motion, 
without  hearing  and  examining  the  matter  about  as  fully  as 
they  would  for  the  purpose  of  making  a  decree.  From  this 
consideration  it  may  be  inferred,  that  the  re-hearing  for  which 
the  statute  provides,  is  a  hearing  of  the  cause  by  the  full 
bench,  at  the  general  term.  If  the  Legislature  had  contem- 
plated a  re-hearing  at  the  special  term,  they  would  have  di- 
rected the  application  to  be  made  there  ;  or  rather,  they  would 
have  said  nothing  about  it.  The  officer  who  has  power  to  hear 
and  determine  equity  causes,  has  power  to  grant  a  re-hearing. 
It  is  a  part  of  the  general  common  law  jurisdiction  of  a  Court 
of  Equity,  Avhich  need  not  be  conferred  by  statute.  And  be- 
sides, it  is  almost  absurd  to  suppose  that  the  Legislature  in- 
tended the  cause  should  be  heard  by  three  Judges,  for  the 
purpose  of  enabling  them  to  decide  whether  it  should  be  re- 
ferred back  to  one  of  their  number,  or  to  some  other  single 
Judge,  for  a  re-hearing.  If  sent  back  to  the  special  term  on 
the  ground  that  the  decree  was  erroneous,  the  special  term 
Judge  might  be  of  a  different  opinion  ;  and  then  the  original 
decree  would  stand,  although  a  majority  of  the  Judges  deemed 
it  erroneous.  If  it  be  said  that  the  special  term  Judge  should 
follow  the  opinion  of  the  full  bench,  then  clearly  it  would  be 
but  an  idle  ceremony  to  send  the  cause  back  to  the  special 
term.  The  full  bench  should  enter  the  proper  decree  at  once, 
instead  of  sending  the  cause  away,  to  have  its  judgment  re- 
gistered in  another  place,  with  the  loss  of  both  time  and 
expense. 

The  statute  does  not  command  the  Court  to  hear  the  appli- 
cation.    But  I  need  not   cite  authorities  to  prove,  that  when 


ALBANY,  JANUARY,  1848.  £31 

Gracie  v.  Freeland. 

an  individual  has  the  right  to  apply  to  a  Court  for  anything  in 
the  course  of  the  administration  of  justice,  it  is  the  duty  of 
the  Court  to  hear  and  decide.  It  is  said,  however,  that  the 
applicant  must  make  out  a  case  before  the  Court  is  bound  to 
hear  him ;  and  that  is  very  true.  But  what  kind  of  a  case  ? 
He  must  shew  himself  a  party  to  a  decree  or  order  made  at  a 
special  term.  The  statute  requires  nothing  more  ;  and  when 
such  a  case  is  presented,  it  is  the  duty  of  the  Court  to  hear 
and  decide.  And  as  the  full  bench  cannot  be  prepared  to  de- 
termine the  motion  which  it  is  required  to  hear,  without  some- 
thing like  a  full  discussion  and  examination  of  the  whole  mat- 
ter, I  think  that  bench  should  decide  the  cause.  It  should 
do  so,  either  by  ordering  a  re-hearing  as  a  matter  of  course, 
and  then  hearing  the  cause ;  or  by  hearing  the  matter  at 
large  in  the  first  instance.  The  case  should  not  be  disposed 
of  by  simply  denying  the  motion,  nor  by  sending  the  cause 
back  to  the  special  term  for  a  re-hearing  ;  but  it  should  be 
decided,  by  making  what  the  full  bench  may  deem  the  proper 
decree  or  order  in  the  premises.  When  the  statute  is  read 
with  reference  to  the  nature  of  the  case  for  which  it  provides, 
I  cannot  entertain  a  doubt  on  the  subject.  I  think  the  Legis- 
lature intended  that  every  party  who  should  be  dissatisfied 
with  a  decision  made  at  the  special  term,  should  be  entitled  to 
have  his  case  heard  and  determined  by  the  full  bench. 

If  the  party  has  the  right  to  a  hearing  at  the  general  term, 
then  of  course  he  should  go  there  from  the  special  term,  in- 
stead of  taking  an  appeal.  The  Legislature  could  not  have 
intended  that  there  should  be  an  appeal  to  this  Court  before 
the  matter  had  been  finally  disposed  of  in  the  Court  of  original 
jurisdiction.  The  appeal  must  be  from  the  decision  at  the 
general  term. 

The  amendatory  act  passed  by  the  same  Legislature,  (Stat. 
1847,  p.  641,  §§  21,  22,  23.)  goes  to  confirm  the  construction 
which  I  have  given  to  the  original  statute. 

I  am  of  opinion  that  the  appeal  should  be  dismissed. 

GARDINER,  J.     The  constitution  has  provided  a  Supreme 


232  CASES  IN  THE  COURT  OF  APPEALS. 

Gracie  v.  Freeland. 


Court,  having  general  jurisdiction  in  law  and  equity,  with 
eight  branches,  one  in  each  judicial  district.  (Art.  6,  Sections 
3,  4,  16.)  The  fourth  section  of  article  6,  declares,  that  there 
shall  be  four  Justices  of  the  Supreme  Court  in  each  district. 
The  sixth  section,  that  the  general  terms  of  said  Court  for  each 
district,  may  be  holden  by  any  three  or  more  of  said  Justices, 
of  whom  a  presiding  Judge  to  be  designated  by  law  shall  be 
one.  And  that  special  terms  and  Circuit  Courts  may  be 
holden  by  any  one  or  more  of  said  Justices,  and  that  any  one 
of  them  might  preside  in  Courts  of  Oyer  and  Terminer. 

The  constitution  distinguishes  between  the  general  and 
special  terms.  This  distinction  does  not  consist  in  the  number 
of  Judges  by  which  the  terms  may  be  holden  respectively  ; 
although  that  circumstance  may  have  been,  and  probably 
was,  the  occasion  of  the  distinction.  The  constitutional  au- 
thority of  a  decision  of  a  special  term,  like  that  of  a  Circuit 
Court,  would  be  the  same  whether  made  by  one  or  four  judges. 

In  the  second  place  all  concede  that  the  entire  jurisdiction 
in  law  and  equity,  secured  by  the  constitution  to  the  Supreme 
Court,  can  be  exercised  at  a  general  term  by  three  or  more 
Judges.  It  follows  that  an  authority  subordinate  in  some  re- 
spect, must  be  administered  at  a  special  term,  or  there  is  no 
difference  between  them.  The  words  general  and  special  im- 
port this  distinction. 

The  meaning  of  "general"  is  that  which  comprehends  all, 
the  whole.  (  Web.  Diet.)  "Special,"  something  designed  for  a 
particular  purpose.  Applied  to  jurisdiction,  they  indicate 
the  difference  between  a  legal  authority  extending  to  the 
whole  of  a  particular  subject,  :ind  one  limited  to  :i  part,  and 
when  applied  to  the  terms  of  Court,  the  occasions  upon  which 
these  powers  c:in  l>e  respectively  exercised.  Such  I  appre- 
hend was  the  legal  import  of  the  words,  "  general  and  special' 
when  applied  to  the  terms  of  the  *;  Supreme  Court,"  as  settled 
bv  the  Courtu  and  the  Legislature;  ami  the  understanding 
oi'  the  legal  profession  at  the  formation  of  the  present  consti- 
.  Imi.  i  1 :5  WenJ.  07:2,  »i.V> ;  1  '2  W.'uJ.  2:50  ;  2  R.  S.  259  ; 
:  0.  :»,  10.  11,  51  ;  •"../  /•/</.;  II  220,  §  25.) 


ALBANY,  JANUARY,  1848.  233 


Gracie  •».  Freeland. 


It  has  been  said  that  by  the  5th  section  of  the  above  arti- 
cle, the  Legislature  possesses  the  same  power  as  formerly,  to 
alter  and  regulate  the  jurisdiction  and  proceedings  in  law 
and  equity,  and  that  this  enables  them  to  confer  such  juris- 
diction as  they  may  deem  expedient,  upon  the  Supreme  Court, 
to  be  exercised  at  a  general  or  special  term,  by  one,  or  three, 
or  more  Judges. 

To  this  suggestion  it  may  be  answered,  that  if  by  the  con- 
stitution a  distinction  exists  between  these  terms,  it  cannot  be 
rightfully  annulled  either  by  legislative  power  or  judicial  con- 
struction. 

In  the  second  place,  if  there  is  no  limit  to  their  authority, 
in  this  respect,  the  Legislature  may  direct  that  all  cases  in 
law  or  equity,  shall  be  determined  at  a  special  term,  and  that 
the  decision  shall  be  the  final  judgment  of  the  Supreme  Court. 
This  of  course  would  abolish  the  general  terms  which  the  con- 
stitution expressly  recognizes.  For  it  will  scarcely  be  claimed 
that  the  right  of  three  or  more  Judges  to  assemble,  without 
the  power  of  transacting  business,  satisfies  the  constitutional 
requirement  for  a  general  term.  The  same  result  would  be 
produced,  if  the  Legislature  can  direct  that  the  same  author- 
ity in  all  respects,  shall  be  exercised  at  a  special  as  a  general 
term.  The  distinction  between  the  two,  studiously  indicated 
in  the  constitution  would  be  abrogated ;  and  that  instrument 
would  in  effect  be  made  to  declare,  that  all  the  business  of 
the  Supreme  Court  might  be  transacted  at  any  term  thereof, 
by  one  or  more  Judges,  as  the  Legislature  should  by  law 
provide. 

Its  language  is,  however,  very  different.  It  ordains  that 
one  Judge  may  hold  a  special  and  three  a  general  term  ;  un- 
like the  constitution  of'  1821  in  this  respect,  which  provided 
that  the  Supreme  Court  should  consist  of  three  Judges,  any 
one  of  whom  might  hold  the  Court. 

If  we  are  bound  to  give  effect  if  possible  to  every  word  in  a 
statute,  the  organic  law  is  certainly  entitled  to  equal  consid- 
eration, and  to  determine,  that  the  power  to  hold  the  Supreme 
Court  at  any  term,  which,  has  the  authority  of  a  Judge  under 

30 


234  CASES  IN  THE  COURT  OF  APPEAL*. 


Gracie  v.  Freeland. 


the  former  constitution,  and  the  power  to  hold  a  special  term, 
are  identical,  or  that  the  phrase  general  and  special  mean  the 
same  thing,  is  equivalent  to  a  declaration  that  the  constitution 
imposes  no  restrictions  upon  Legislative  power  whatever. 

I  assume,  therefore,  that  there  is  a  constitutional  difference 
between  the  special  and  general  terms.  This  difference  may 
consist,  and  it  is  the  slightest  that  occurs  to  my  mind,  in  this, 
that  the  decisions  at  the  general  term,  are  the  only  final 
determination  of  the  Supreme  Court,  while  those  of  the  spe- 
cial term,  are  in  all  cases  affecting  the  merits  of  the  contro- 
versy, subject  to  review  in  the  same  Court,  at  a  general  term, 
at  the  election  of  the  party  aggrieved. 

This  distinction  in  the  authority  to  be  administered  at  the 
respective  terms,  will  satisfy  the  language  of  the  constitution, 
which  demands  a  difference  of  jurisdiction,  but  does  not  define 
precisely  in  what  that  difference  shall  consist.  It  leaves  the 
Legislature  at  liberty  to  confer  such  judicial  power  as  the 
exigencies  of  the  public  may  require,  subject  only  to  the 
restriction  above  mentioned,  and  relieves  us  from  the  neces- 
sity of  resorting  to  the  precise  powers  exercised  at  the  special 
terms  of  the  old  Courts — which  varied  at  different  times,  and 
in  different  Courts, — with  a  view  to  establish  a  constitutional 
limitation  upon  the  authority  of  the  Legislature.  This  con- 
struction is  strengthened  by  the  provisions  of  the  25th  section 
of  article  6,  which  declares — among  other  things — that  the 
Legislature  shall  provide  for  the  allowance  of  writs  of  error 
and  appeals  to  the  Court  of  Appeals,  from  the  judgments  and 
decrees  of  the  Courts  that  may  be  organized  under  the  con- 
stitution. 

The  Supreme  Court  possessing  general  jurisdiction  in  law 
and  equity,  was  one  of  these  ;  and  when  the  constitution 
speaks  of  writs  of  error  and  appeals  from  this  Court,  I  can- 
not but  think  that  its  authors  referred  to  decisions  made  by  a 
tribunal  clothed  with  general  jurisdiction  in  law  and  equity, 
and  not  merely  a  special  authority,  with  all,  and  not  with  a 
part  of  the  powers  of  the  Supreme  Court  of  the  constitution. 
Decisions  made  at  a  special  term  by  virtue  of  an  authority 


ALBANY,  JANUARY,  1848-  286 


Gracie  v.  Freeland. 


however  extensive  yet  less  than  that  above  mentioned,  an  au- 
thority granted  by  the  Legislature  and  not  given  directly  by 
the  constitution,  cannot  with  propriety  be  considered  as  the 
judgments  and  decrees  of  a  Supreme  Court  within  the  mean- 
ing of  the  25th  section. 

If  this  view  is  erroneous,  then  we  have  a  Supreme  Court 
with  twenty-eight,  instead  of  eight  branches,  and  the  unifor- 
mity of  decision  which  the  framers  of  the  constitution  sup- 
posed might  be  attained  by  the  system  as  it  came  from  their 
hands,  is  rendered  impracticable.  (See  Debates,  CroswelVs 
Ed.  372 ;  4th  and  6th  prop,  of  Mr.  Ruggles  ;  Remarks  of 
Mr.  Jordan,  508,  513  ;  Mr.  Kirkland's  prop.,  376.) 

The  judiciary  act  accords  with  this  construction  of  the  con- 
stitution. It  was  the  manifest  intention  of  the  Legislature 
by  that  statute  to  afford  to  every  suitor  aggrieved  by  a  deci- 
sion at  a  special  term,  the  opportunity  of  a  re-hearing  in  the 
nature  of  an  appeal  in  the  same  Court  and  before  other  Judges. 
(Laws  of  1847,  325,  §  20 ;  act  to  amend,  ib.  638,  §§  21,  22 
and  23.) 

The  statute,  it  will  be  observed,  confines  the  original  hear- 
ing to  the  special  term.  Litigants  therefore  cannot  elect  their 
forum.  If  a  review  in  the  same  Court  is  not  a  matter  of 
right,  every  case  must  be  heard,  and  can  be  finally  determined 
by  a  single  Judge,  unless  in  the  exercise  of  a  discretion  which 
cannot  be  questioned  elsewhere,  he  should  transmit  it  to  the 
general  term.  In  the  second  place,  the  right  of  either  party 
to  apply  for  a  re-learing,  is  absolute  and  unqualified,  and  co- 
extensive with  the  authority  of  the  Judge  at  a  special  term  to 
hear  and  determine.  The  authority  to  refuse  the  application 
is  not  granted  to  the  Court  by  the  terms  of  the  statute,  nor 
does  it  arise  by  any  fair  implication. 

Thirdly,  the  technical  re-hearing  of  the  Court  of  Chancery, 
is  not  the  re-hearing  mentioned  in  the  judiciary  act.  The 
former  is  provided  for  by  the  16th  section,  which  vests  in  the 
Supreme  Court  the  jurisdiction  possessed  and  exercised  by  the 
Court  of  Chancery,  and  the  Judges,  with  the  powers  of  the 
Chancellor.  The  right  to  grant  a  re-hearing,  was  one  of  the 
ordinary  powers  of  a  Court  of  Chancery. 


236  CASES  IN  THE  COURT  OF  APPEALS. 

Gracie  v.  Froeland. 


Fourthly,  the  re-hearing  of  Chancery  does  not  extend  to 
orders  obtained  upon  motion,  but  is  confined  to  decisions 
made  upon  the  merits,  and  to  a  certain  class  of  decretal  or- 
ders. (1  Harbour  Oh.  Pr.  353.)  But  the  right  to  a  rehear- 
ing under  the  statute,  applies  "  to  every  suit  and  proceedings 
that  shall  be  heard  and  determined  at  a  special  term." 

Fifthly,  because  by  the  practice  of  the  Court  the  technical 
re-hearing  must  be  sought  from  the  same  officer  who  original- 
ly heard  and  decided  the  cause.  (Fox  vs.  Me  Keath,  2  Cox 
R.  159 ;  8  Fes.  564 ;  1  Paige  57.)  The  exceptions  to  the 
rule  are,  1st,  where  the  Judge  who  made  the  decree  is  not  in 
office  at  the  time  of  the  application  for  a  re-hearing.  (Ores- 
ley's  JEv.  410  ;)  and  2d,  those  cases  in  which  the  re-hearing 
is  in  the  nature  of  an  appeal. 

Now  the  judiciary  act  directs  that  the  application  for  the 
re-hearing  shall  be  made  to  a  tribunal,  all  of  whose  officers 
may  be,  and  a  majority  of  whom  will  be,  different  from  the 
one  who  has  heard  the  cause.  The  error  imputed  to  the  de- 
cree or  order  must  be  fully  brought  before  them,  and  this  can- 
not be  done  but  by  a  proceeding  which,  however  denominated, 
will  in  effect  be  a  re-hearing  in  the  nature  of  an  appeal. 

And  lastly,  the  hypothesis  that  an  appeal  will  lie  from  a 
decree  at  a  special  term,  leads  to  a  conflict  of  jurisdiction. 
From  an  interlocutory  order  for  example,  the  complainant 
may  appeal,  and  the  defendant  apply  for  a  re-hearing.  But 
an  appeal  properly  made,  stays  all  proceedings,  a  re-hearing 
with  others,  (2  H.  S.  608,  §  86,)  adopted  by  the  judiciary  act, 
§  11.  If  not  stayed,  in  what  Court  are  the  errors  of  which 
both  parties  complain,  to  be  corrected  ?  This  absurdity  is 
avoided  if  the  right  of  appeal  is  confined  to  decisions  made 
at  a  general  term. 

The  above  are  some  of  the  reasons  which  induce  the  belief 
that  the  Legislature  used  the  term  re-hearing,  not  in  a  tech- 
nical but  in  its  popular  sense,  as  equivalent  to  a  second  hear- 
ing. They  could  not  with  propriety  provide  for  an  appeal, 
because  this  is  an  application  after  a  complete  judgment,  to  a 
Superior  Court  having  a  right  to  review  that  judgment.  Tlu* 


ALBANY,  JANUARY,   1848.  237 


Gracie  v.  Freeland. 


Judges,  at  the  special  and  general  terms,  although  exercising 
a  different  authority,  administer  justice  in  the  same  court. 
Hence  a  method  was  adopted  by  which  the  cause  could  be  re- 
viewed, analogous  to  a  re-hearing,  inasmuch  as  it  was  by  the 
same  court,  and  in  the  nature  of  an  appeal,  because  that  re- 
view must  be  had  before  different  Judges.  (Grresley's  Ev.  410.) 
The  order  in  question,  not  having  been  presented  to  the 
Supreme  Court,  at  a  general  term,  for  review,  is  not  therefore 
the  subject  of  an  appeal  to  this  Court,  according  to  the  true 
intent  and  meaning  of  the  constitution,  and  of  the  act  in  re- 
lation to  the  judiciary. 

All  the  other  Judges  concurred  in  the  result  of  the  above 
opinions,  and  the  appeal  was  accordingly  dismissed. 


CASES 


ARGUED   AND   DETERMINED 
IN  THE 

COURT  OF  APPEALS 

OF  THE 

STATE  OF  NEW-YORK 
IN  APRIL  TERM,  1848. 


BURKLE    VS.    LUCE.  79 

&  defendant  in  error,  who  was  prosecuted  in  tlie  Court  below  for  an  act  done  by 
him  as  a  public  officer,  is  entitled  to  double  costs  in  error,  on  the  affirmance  of 
the  judgment. 

The  Court  of  Appeals  does  not  lose  jurisdiction  of  a  cause  brought  up  by  writ  01 
error,  until  the  remittitur  is  actually  filed  with  the  Clerk  of  the  Court  below. 

Double  costs.  The  defendant  in  error  was  sued  in  the 
Supreme  Court  for  an  act  done  by  him  as  a  public  officer. 
The  judgment  in  that  Court  was  in  his  favor,  and  was  affirmed 
by  this  Court  in  January  last.  The  usual  entry  of  the  judg- 
ment was  made  by  the  Clerk,  giving  only  single  costs,  and 
without  any  request  for  that  purpose  the  Clerk  also  made  out 
a  remittitur  and  sent  it  by  mail  to  the  Attorney  for  the  de- 
fendant in  error.  The  Attorney  seeing  that  only  single  costs 
were  allowed,  did  not  file  the  remittitur  in  the  Supreme 
Court,  but  kept  it  in  his  own  hands,  and  now  moved  this  Court 
that  the  entry  of  the  judgment  be  so  corrected  as  to  give 
double  costs. 

N.  Hill,  jr.  for  the  motion,  cited  2,  R.  S.  617,  §  24 ;  Mur- 
ray vs.  Blatchford,  2  Wend.  221. 


240  CASES  IN  THE  COURT  OF  APPEALS. 


Martin  v.  Wilson. 


J.  E.  Carey,  for  plaintiff  in  error,  insisted  that  as  the  re- 
mittitur  had  been  sent  to  the  Attorney  for  the  defendant  in 
error,  who  might  file  it  in  the  Supreme  Court  at  pleasure, 
this  Court  had  lost  jurisdiction  of  the  cause.  (Delaplaine  vs. 
Bergen,  7  Hill  591;  Legg  vs.  Overbagh,  4  Wend.  188.) 
Also  that  the  statue  allowing  double  costs  did  not  apply  to  a 
defendant  in  a  writ  of  error. 

THE  COURT  held,  that  the  statue  gives  double  costs  to 
public  officers  on  writ  of  error  as  well  as  in  the  Court  of 
original  jurisdiction.  Also,  that  the  Court  did  not  lose  juris- 
diction until  the  remittitur  should  be  filed  in  the  Court  below ; 
and  as  that  had  not  been  done  in  this  case,  that  the  motion 
might  be  granted,  on  condition  that  the  Attorney  return  the 
remittitur  to  the  Clerk  of  this  Court  to  be  cancelled. 

Rule  accordingly. 


MARTIN  vs.  WILSON. 

Where  aAer  affirmance  of  the  judgment  of  the  Court  below,  a  remittitur  has  been 

240  gent  to  and  filed  with  the  Clerk  of  that  Court,  this  Cou/t  loses  jurisdiction  of  the 

cause,  so  that  it  cannot  open  a  default  therein. 

0.  W.  Sturtevant,  for  the  plaintiff  in  error  moved  to  open 
a  judgment  of  affirmance  by  default  in  this  case  at  the  last 
January  term,  and  read  affidavits  excusing  the  default. 

J.  H.  Magher,  for  the  defendant  in  error,  read  an  affidavit 
showing  that  a  remittitur  had  been  issued  and  duly  filed  in 
the  Supreme  Court. 

THE  COURT  held  that  it  lost  jurisdiction  of  the  cause  when 
the  remittitur  was  filed  in  the  Court  below,  and  on  that 
ground 

Denied  the  motion. 


NEW-YORK,  APRIL,  1848.  £41 


Jewell  v,  Schouten. 


JEWELL  vs.  SCHOUTEN. 

Where  the  attorney  for  the  plaintiff  in  error  removed  from  the  State,  and  notice 
had  been  given  to  the  party  to  appoint  another  attorney  pursuant  to  the  statute 
(2  R.  S.  287,  §  67.)  lidd  nevertheless,  that  a  motion  to  quash  the  writ  of  error 
could  not  be  made,  without  notice  thereof  to  the  plaintiff  in  error. 

-  for  defendant  in  error  moved  exparte 
to  dismiss  the  writ  of  error  in  this  cause.  It  appeared  from 
the  affidavits  on  -which  the  motion  was  made,  that  in  the  sum- 
mer of  1846,  the  attorney  for  the  plaintiff  in  error,  removed 
out  of  the  State  to  reside ;  that  in  October  of  that  year,  a 
notice  was  served  upon  the  plaintiff  in  error  to  appoint  anothei 
attorney,  and  that  none  had  been  appointed.  2  R.  S.  287, 
§  67,  and  The  Chautaque  County  Bank  vs.  Risley,  6  Hill 
375,  were  cited. 

THE  COURT  held  that  notice  of  the  motion  should  have  been 
given  to  the  plaintiff  in  error,  and,  therefore,  that  the  motion 
should  be  denied  without  prejudice. 

Ordered  accordingly. 
31  °y 


242 


CASES  IN  THE  COURT  OF  APPEALS. 


Sparrow  v.  Kingman. 


242 

HA  692 
1  51 
1  95 
'606 
1  20 
'251 
'285 
1450 
353 


SPARROW  vs.  KINGMAN. 

In  ejectment  for  dower  against  a  grantee  of  tha  husband  by  quit  claim  fatd,  or  • 
person  holding  under  such  grantee,  the  defendant  is  not  estopped  from  shewing 
that  the  husband  was  not  seized  of  such  an  estate  in  the  premise*  as  to  entitle 
his  widow  to  dowei. 

The  cases  of  Sherwood  vs.  Van<l«nburgh,  (2  I  fill  303,)  Baton*  vs.  Potter,  (1 7  Waul 
161,)  and  other  similar  cases  in  the  Supreme  Court,  considered,  and  in  thia  re- 
spect overruled. 

Error  from  the  Supreme  Court.  Elizabeth  Kingman  brought 
ejectment  in  the  Common  Pleas  of  Erie  County,  against  Eras- 
tus  Sparrow  to  recover  an  undivided  sixth  part  of  certain  pre- 
mises as  the  widow  of  George  G.  Kingman,  deceased.  After 
issue  joined,  the  cause  was  removed  by  certiorari  into  the  Su- 
preme Court,  and  was  tried  at  the  Erie  Circuit,  before  DAY- 
TON, Circuit  Judge,  in  January,  1846.  On  the  trial,  the  mar- 
riage of  the  plaintiff,  and  the  death  of  her  husband,  were 
admitted. 

The  plaintiff  proved  that  her  husband,  George  G.  Kingman, 
and  Philo  Durfee,  were  in  possession  of  the  premises  from 
1837  to  1840  inclusive,  claiming  as  owners,  and  built  certain 
mills  thereon  called  the  "  Erie  Mills  ;"  that  in  February,  1841, 
Kingman  gave  a  quit  claim  deed  of  his  interest  in  the  premi- 
ses to  S.  J.  Holley,  and  that  in  August,  1841,  Durfee  also 
gave  a  quit  claim  deed  of  his  interest  in  the  premises,  (de- 
clared in  the  deed  to  be  an  undivided  half)  to  the  defendant. 
That  in  April,  1842,  the  defendant  and  Holley  united  in  a 
quit  claim  deed  of  the  premises  to  Ira  B.  Carey,  and  that  the 
defendant,  at  the  commencement  of  the  suit,  was  in  posses- 
sion under  a  lease  from  Carey.  The  defendant  offered  to 
shew  that  Kingman  never  had  any  estate  in  the  premises  of 
which  his  wife  was  dowable,  but  that  his  estate  was  a  lease- 
hold estate  merely ;  also  that  he  never  had  any  title  what- 
ever to  the  premises.  The  evidence  so  offered  was  objected 
to  by  the  plaintiff,  and  excluded  by  the  Circuit  Judge  on  the 
ground,  that  as  Kingman,  when  in  possession,  had,  by  his 
deed  to  Holley,  assumed  to  convey  a  fee,  and  as  the  defend- 


NEW-YORK,  APRIL,  1848.  243 


Sparrow  v.  Kingmau. 


ant  held  under  that  deed,  he,  the  defendant,  was  bound  by  it, 
and  was  estopped  from  setting  up  that  Kingman  had  not  an 
estate  of  which  his  wife  was  dowable.  The  defendant  except- 
ed.  A  verdict  was  had  for  the  plaintiff,  and  the  defendant, 
upon  bill  of  exceptions,  moved  in  the  Supreme  Court  for  a 
new  trial,  which  motion  was  denied,  and  judgment  rendered 
for  the  plaintiff.  The  defendant  brings  error. 

JET.  S.  Dodge,  for  plaintiff  in  error. 

I.  The  Circuit  Judge  erred  in  excluding  the  evidence  of- 
fered to  show  that  Kingman  never  had  any  estate  in  the 
premises. 

1.  The  acceptance   by  Holley  of  Kingman  s   quit-claim 

deed-poll  to  him,  did  not  estop  him,  or  those  claiming 
under  him,  from  showing  that  Kingman  had  no  title. 
An  estoppel  by  acceptance  of  possession  is  only  in 
pais,  and  therefore  only  applies  to  a  lessee  or  other 
gcantee,  who  is  under  obligation  to  restore  the  posses- 
sion. (Co.  Littleton,  352,  a  ;  Watkins  vs.  Holman,  16 
Peters,  25  ;  Small  vs.  Proctor,  15  Mass,  R.  499  ;  Os- 
terhout  vs.  Shoemaker,  3  Hill,  518.) 

2.  There  can  be  no  estoppel  for  want  of  mutuality  ;  King- 

man himself  would  not  have  been  estopped  by  his 
quit-claim  deed  from  showing  that  no  title  passed  by  it. 
(Jackson  vs.  Hubbell,  1  Cowen.  616 ;  Jackson  vs. 
Bradford,  4  Wend.,  622  ;  Jackson  vs.  Waldron,  13 
Wend.,  178.) 

3.  His  widow  would  not  be  estopped,  even  if  he  had  cove- 

nanted, and  therefore  she  cannot  estop  the  grantee. 
(2  Smith's  Leading  Cases,  p.  438  ;  Jewell  vs.  Harring- 
ton, 19  Wend.,  471 ;  G-aunt  vs.  Wainman,  3  Bing.t 
N.  C.  69.) 

II.  The  Circuit  Judge  erred  in  excluding  the  evidence  of- 
fered to  shew  that  Kingman  had  an  estate  for  years,  or  some 
other  estate  not  of  inheritance. 

1.  The  cases  relied  upon  on  the  other  side,  were  cases  where 
the  offers  were  to  shew  no  title  in  the  husband,  not  to 


244  CASES  IN  THE  COURT  OF  APPEALS. 

Sparrow  v.  Kingman. 

shew  a  less  estate,  and  if  they  are  conceded  to  be  law, 
they  do  not  determine  this  question. 

2.  There  is  no  estoppel  where  an  interest  passes  ;  in  other 
words,  it  may  always  be  shewn  that  a  less  estate  passed 
than  the  estate  mentioned  in  the  deed,  although  it  be 
an  indenture.  (Treport's  Case,  6  Rep.  146;  2  Wil- 
liam's Saitnder's  418  note  1 ;  2  Smith's  Leading  Ca- 
ses 438,  457). 

HI.  But  the  foundation  of  the  argument  to  prove  an  es- 
toppel, i.  e.  in  the  words  of  the  Circuit  Judge,  that  "  by  the 
deed  to  Holley,  Kingman  assumed  to  convey  a  fee,"  wholly 
fails  in  the  present  case. 

I.  The  deed  ia  a  mere  quit  claim  and  release,  and  there- 

fore only  purports  to  convey  the  right  that  the  gran- 
tor had,  and  for  that  reason  never  could  operate  as  an 
estoppel.  (Right  vs.  Bucknell,  2  B.  and  Aid.  278.) 
At  most,  the  deed  merely  affirms  that  Kingman  was 
entitled  to  a  fee,  or  some  other  estate,  and  there  could 
be  no  estoppel  from  such  an  uncertain  recital  if  it  had 
been  made  expressly.  (Right  vs.  Bucknell,  ubi  supra.} 

2*  If  there  ever  were  any  doubt  of  this  point,  there  can  be 
none  since  the  provisions  of  the  Revised  Statutes.  (1 
R.  S.  738,  739,  §§  136, 140, 142, 143, 144, 145 ;  also, 
1  R.  S.  748,  §  1,  2). 

8.  The  deed,  therefore,  from  Kingman  to  Holley,  was  in- 
tended and  assumed  to  pass  whatever  estate  and  inter- 
est Kingman  had  without  defining  it,  and  must  be  read 
as  if  it  had  expressly  so  stated  its  object. 

ff".  Hill,  Jr.,  for  defendant  in  error. 

L  The  actual  possession  and  use  of  the  premises  by  the 
plaintiff's  husband,  claiming  to  be  owner,  and  building  the 
"Erie  Mill's"  thereon,  proved  such  an  estate  in  the  husband 
as  entitles  her  to  dower.  (Bowne  vs.  Potter,  17  Wend.  164 ; 
Carpenter  vs.  Weeks,  2  If  ill,  341 ;  Shenvood  vs.  Vanden- 
burgh,  do.  303;  Jackson  vs.  Walter,  5  Cow.  301.) 

II.  The  Circuit  Judge  correctly  ruled  that  the  defendant 


NEW-YORK,  APRIL,  1848.  245 


Sparrow  v.  Kingman. 


was  estopped  from  denying  the  title  of  Kingman,  the  plain- 
tiff's husband,  inasmuch  as  he  was  in  possession  of  the  whole 
estate  under  the  deed  from  Kingman,  and  held  by  the  same 
title  that  Kingman  did.  (Hitchcock  vs.  Harrington,  6  Johns. 
290  ;  Collins  vs.  Torrey,  7  do.  278  ;  Hitchcock  vs.  Carpenter, 
9  do.  344  ;  Davis  vs.  Darrow,  12  Wend.  65 ;  Bowne  vs.  Pot- 
ter, 17  Wend.  164 ;  Sherwood  vs.  Vandenburgh,  2  Hill  303.) 

WRIGHT,  J.  On  the  trial,  at  the  Circuit,  the  marriage  of 
the  plaintiff  below  with  George  Gr.  Kingman,  and  the  death 
of  the  latter,  were  admitted ;  and  when  the  plaintiff  rested 
her  cause,  she  had  prima  facie  established  a  seizin  in  fee  of 
her  husband,  in  his  lifetime,  in  the  lands  from  which  dower 
was  demanded.  For  this  purpose,  it  was  sufficient  to  shew 
his  actual  possession  of  the  premises,  claiming  as  owner. 
This  is  presumptive  evidence  of  seizin,  and  sufficient  until 
the  contrary  appears.  (2  Philips  evidence  282  ;  2  John  R. 
123,  5  Cowen  301.)  But  she  went  further,  shewing  a  quit 
claim  or  release  of  the  premises  from  her  husband  to  S.  J. 
Holley,  and  from  Holley  and  others  by  successive  releases  to 
the  landlord  of  the  defendant.  To  rebut  the  presumption  of 
seizin,  arising  from  this  evidence,  the  defendant  offered  to 
shew  affirmatively  that  Kingman  never  had  any  title  to  the 
premises,  or  that,  at  most,  he  had  but  a  leasehold  estate,  of 
which  his  wife  was  not  dowable.  The  Circuit  Judge  rejected 
this  evidence,  and  decided  that  as  Kingman,  when  in  posses- 
sion, had  by  his  deed  to  Holley,  assumed  to  convey  a  fee,  and 
as  the  defendant  held  under  that  deed  he  was  bound  by  it, 
and  was  estopped  from  setting  up  that  Kingman  had  not  an 
estate  of  which  his  wife  was  dowable,  and  that  upon  the  evi- 
dence given,  the  plaintiff  was  entitled  to  a  verdict. 

I  am  of  opinion  that  it  will  be  difficult  to  rest  this  decision 
upon  sound  principle,  or  to  reconcile  it  with  the  doctrine  of 
estoppels,  as  generally  understood  and  expounded  by  the 
Courts  ;  although  I  am  aware  that  there  are  several  cases  in 
our  own  Courts,  that  hold  that  a  grantee  of  the  husband,  is 
estopped  from  denying  his  seizin  in  an  action  of  dower 


246  CASES  IN  THE  COURT  OF  APPEALS. 

Sparrow  v.  Kingman. 

brought  by  the  widow.  (6  John.  R.  393 ;  7  J.  R.  279  ;  12 
Wend.  R.  47  ;  17  Wend.  164  ;  See  2  JK8207  ;  3  Hill  518.) 
Perhaps,  the  case  of  Bowne  vs.  Potter,  (17  Wend.  164)  is  the 
only  one  that  may  he  said  to  entirely  assimilate  with  the 
present.  The  error  originated  in  a  dictum  of  a  Judge  of  the 
Supreme  Court,  in  an  early  cage,  and  has  been  followed  until 
the  present  time  ;  recently,  not  because  the  misapplication  of 
the  law  of  estoppels  was  not  distinctly  seen  by  the  learned 
Judges  who  sat  in  the  Supreme  Court,  but  for  the  reason  that 
the  rule  had  been  conclusively  settled  for  them  by  repeated 
adjudications  of  the  predecessors.  Here,  however,  the  ques- 
tion is  not  res  adjudicata,  and  we  shall  be  at  liberty  to  reject 
the  rule,  if  it  shall  be  found,  on  examination,  irreconcilable 
with  the  doctrine  of  estoppels  in  pais,  and  unsupported  by 
principle  or  binding  authority. 

If  the  grantee  in  fee  is  estopped  from  denying  the  seizin 
of  his  grantor,  a  uniform  and  invariable  application  should 
be  given  to  the  rules.  Indeed,  the  reason  is  not  so  strong 
for  applying  it  in  dower  cases  (in  which  only  it  has  been 
fully  applied)  as  in  cases  arising  immediately  between  grantor 
and  grantee,  or  those  claiming  under  conveyances  from  the 
grantor.  If  the  grantee,  therefore,  is  invariably  estopped, 
the  grantor,  also,  is  concluded ;  for  it  is  a  -principle  of  the 
law  of  stoppels  that  they  must  be  mutual.  But,  I  am  not 
aware  that  it  has  been  latterly  doubted,  that  a  grantor  who 
conveys,  or  releases,  without  interest  in  the  lands  conveyed 
or  released,  may  not  show  that  he  had  no  title  to  pass  by  his 
conveyance ;  unless,  in  the  conveyance  itself,  by  way  of  re- 
cital or  otherwise,  he  represents  himself  to  be  the  owner  of 
the  premises,  or  having  some  particular  interest  therein, 
which  it  would  be  fraudulent  to  permit  him  to  gainsay  or 
deny.  The  recital,  in  a  conveyance  with  certainty  of  a  par- 
ticular fact  forming  an  inducement  for  the  contract,  will  bind 
the  grantor,  but  otherwise  there  is  no  estoppel.  General 
words  will  not  have  this  effect.  When  a  grantor  conveys, 
without  title,  but  with  covenant  of  warranty,  lie  will  be  con- 
cluded, and  an  after  acquired  estate  will  pass  to  the  grantee, 


NEW- YORK,  APRIL,  1848.  247 


Sparrow  v.  Kingman. 


not  because  the  party  conveying  had  a  title  at  the  execution 
of  hig  deed,  or  that  the  law  will  presume  such  an  absurdity, 
but  by  way  of  avoiding  circuity  of  action.  An  equitable  es- 
toppel will  be  interposed.  The  grantor  has  solemnly  cove- 
nanted that  he  had  title  at  the  date  of  his  conveyance,  and 
has  agreed  to  warrant  and  defend  it ;  the  law  will  not  per- 
mit the  grantee  to  be  evicted,  and  put  to  his  action  against 
the  grantor  on  the  covenant ;  or  in  other  words,  it  will,  in  an 
action  by  the  latter  to  recover  the  possession  of  the  premises, 
estop  him  "  from  impeaching  a  title  to  the  soundness  of  which 
he  must  answer  on  his  warranty."  But  the  grantor  is  not 
concluded  unless  an  action  may  be  brought  against  him.  A 
quit  claim  deed  only  purports  to  release  and  quit  claim  what- 
ever interest  the  grantor  may  then  have  in  the  premises.  If 
he  have  none  in  esse  at  its  delivery,  nothing  passes ;  and  not 
having  covenanted  to  be  answerable  for  the  soundness  of  the 
title  conveyed,  should  the  grantor  afterwards  acquire  a  valid 
estate  in  the  premises,  he  could  not  be  chargeable  with  bad 
faith  in  attempting  to  enforce  it.  In  such  a  case  he  could 
not  be  met  by  any  direct  admission  on  his  part,  inconsistent 
with  the  title  or  claim  he  purposed  to  set  up,  and  upon  which 
the  other  party  could  have  an  action,  and  which  would  create 
an  injury  to  such  party  by  allowing  it  to  be  disproved. 
Kingman,  the  grantor  in  the  present  case,  therefore,  would 
not  have  been  estopped  by  his  quit  claim  deed  to  Holley  from 
shewing  either  that  no  title  passed  by  it,  or  that  the  estate 
conveyed  was  less  than  a  fee.  (1  Cowen  616  ;  4  Wend.  622  ; 
13  Wend.  178  ;  3  Hill  219.)  The  Circuit  Judge  grounded 
his  decision  upon  the  fact  "  that  Kingman,  when  in  possession, 
had  by  his  deed  to  Holley,  assumed  to  convey  a  fee."  This, 
it  seems  to  me,  was  an  unwarrantable  construction  of  the  deed. 
It  was  an  ordinary  quit  claim,  that  might  be,  and  often  is 
used,  to  pass  an  estate  less  than  a  fee.  Kingman,  by  giving 
it,  could  assume  nothing  in  relation  to  the  extent  or  nature  of 
the  estate.  The  law  fixes  the  force  and  effect  to  be  given  to 
the  instrument.  It  could  pass  no  greater  estate  or  interest 
than  the  grantor  himself  possessed  at  the  delivery  of  it. 


248  CASES  IN  THE  COURT  OF  APPEALS. 

Sparrow  v.  Kingman. 

Had  Kingman  been  a  tenant  for  life  or  years,  or  seized  in 
fee,  all  his  title,  estate  or  interest  would  have  passed  to  the 
grantee  by  the  conveyance  which  he  executed,  and  nothing 
more.  (1  R.  S.  739,  §§  142,  143,  145.)  The  deed,  there- 
fore, from  Kingman  to  Holley,  assumed  to  pass  whatever 
estate  and  interest  Kitgman  had  without  specifically  defin- 
ing it. 

If  the  grantor,  then,  might  shew  that  no  title  passed  by 
his  quit  claim,  and  recover  the  land  in  opposition  to  it,  why 
should  the  mouth  of  his  grantee  be  closed  from  denying  that 
he  received  an  estate  in  fee  from  him,  or  that,  indeed,  any 
title  passed  by  his  conveyance  ?  Apply  the  rule  of  mutuality, 
and  it  is  impossible  to  assign  a  valid  reason.  Both  parties 
must  be  bound,  or  intended  to  be,  else  neither  is  concluded. 
There  can  be  no  soundness  in  the  principle  of  estopping  a 
grantee  from  shewing  that  no  interest  passed  to  him  by  the 
deed  of  the  grantor,  while  the  latter  is  permitted  to  shew  it. 
But,  it  may  be  further  observed,  that  this  was  an  action  for 
dower  brought  by  Kingman's  widow,  and  had  Kingman  con- 
veyed the  premises  to  Holley,  with  covenant  of  warranty,  and 
thereby,  by  the  doctrine  of  equitable  estoppel,  concluded  him- 
self from  denying  that  a  title  passed  by  his  deed,  the  widow 
could  not  have  been  affected.  His  covenant  could  not  have 
estopped  her.  She  would  have  been  neither  a  party  nor 
privy,  but  a  stranger  to  the  conveyance,  claiming  by  para- 
mount title.  She  would  not  be  concluded  if  the  grantor  was, 
and  by  the  rule  of  mutuality,  as  against  a  stranger,  the 
grantee  should  not  be.  In  the  case  of  Gf-aunt  vs.  Wainman, 
(3  Bing.  N.  C.  69,)  the  tenant  was  permitted  to  shew  the 
land  to  be  leasehold,  although  it  was  set  forth  as  freehold  in 
the  deed  to  himself  which  was  produced  at  the  trial.  Tindall, 
C.  J.  said,  that  "  if  an  estoppel  existed  it  must  of  necessity 
be  mutual ;  but  that  it  could  not  be  contended  that  if  a  hus- 
band conveyed  freehold  as  leasehold,  his  widow  would  be  con- 
cluded from  shewing  the  real  nature  of  the  estate;"  and  he 
therefore  held  that  the  same  right  existed  in  the  tenant.  In 
the  case  under  consideration  the  defendant  below  pi-oposed  to 


NEW- YORK,  APRIL,   1848.  249 


Sparrow  v.  Kingman. 


§how  that  Kingman  had  but  a  leasehold  estate,  even,  admitting 
that  by  his  quit  claim  he  assumed  to  convey  a  fee ;  and  in 
this  respect,  the  case  of  Gaunt  vs.  Wainman,  is  in  direct  con- 
flict with  the  ruling  of  the  Circuit  Judge.  It  has,  also,  been 
held  that  if  baron  and  feme  join  in  a  lease  for  years,  by  in- 
denture, rendering  rent,  where  the  baron  hath  all  the  estate 
and  the  wife  nothing ;  after  the  death  of  the  baron  the  lessee, 
in  action  of  debt  brought  by  the  feme,  shall  not  be  concluded 
to  say  that  at  the  time  of  the  lease  made,  the  feme  had 
nothing  in  the  lands,  because  the  feme  being  covert  was  not 
estopped,  and,  by  consequence,  neither  shall  the  lessee,  for 
the  reason  that  all  estoppels  ought  to  be  mutual.  (Bacon  & 
Abrdg.  Title  Leases,  (0.}  and  Cases  cited.}  To  hold  there- 
fore, that  the  grantee  is  estopped,  when  sued  by  the  widow, 
from  shewing  that  his  grantor  had  no  estate  in  premises,  or  a 
less  estate  than  his  deed  purported  to  convey,  whilst  the 
widow  not  being  a  party  or  privy  to  the  conveyance,  is  not 
barred,  is  a  violation  of  Lord  Coke's  first  rule,  viz :  that 
"  estoppels  ought  to  be  reciprocal-" 

It  is  contended  that  the  grantee  is  concluded  by  acceptance 
of  the  deed.  But,  waiving  the  doctrine  of  mutuality,  this 
cannot  be,  unless  there  be  an  estate  which  has  actually  passed 
to  the  grantee  by  it,  co-extensive  with  its  description  in  the 
conveyance.  The  mere  acceptance  of  a  deed-poll,  when  no 
interest  actually  passes  by  it,  surely  cannot  conclude  the  par- 
ty accepting.  Such  a  conclusion  would  be  totally  irreconcila- 
ble with  every  principle  of  the  law  of  estoppel  inpais.  Lord 
Coke,  in  treating  of  estoppels  in  pais,  includes  that  "  by  ac- 
ceptance of  an  estate,"  but  he  distinctly  illustrates  his  mean- 
ing, by  an  example  which  he  gives  of  a  case  put  by  Littleton, 
viz  :  of  a  common  law  assurance  by  feoffment  without  writing 
accompanying  it.  Such  an  assurance  operated  on  the  posses- 
sion, and  if  correctly  pursued  always  passed  a  freehold  or  fee 
simple  to  the  feoffee.  But  in  the  case  of  a  conveyance  by 
grant,  bargain  and  sale  or  release,  in  which  it  is  never  neces- 
sary that  actual  possession  should  accompany  the  deed,  the 

very  point  is  whether  an  estate  existed  in  the  grantor,  and 

32 


250  CASES  IN  THE  COURT  OF  APPEALS 


Sparrow  v.  Kingman. 


has  passed,  to  be  accepted.  In  Taylor's  case  34  Eliz.  cited 
in  Sir  W.  Jones  317)  which  has  been  relied  on  to  sustain  the 
doctrine  that  a  grantee  is  estopped  in  dower  cases  to  deny  the 
seizin  of  the  husband,  it  was  held  that  if  a  tenant  at  will  or 
for  years  make  a  feoffinent  in  fee  and  died,  and  his  wife 
brought  dower  against  the  feoffee,  he  could  not  plead  that  the 
husband  was  not  seized.  This  is  the  case  of  a  tortious  feoff- 
ment,  in  which  the  feoffee  has  obtained  and  retains  the  actual 
seizin  of  the  lands  by  a  wrong,  in  which  he  is  in  some  degree 
a  willing  participant.  It  is  to  be  remembered  that  to  make  a 
valid  feoffinent,  nothing  was  wanting  but  possession,  and  when 
the  feoffor  had  possession,  though  a  mere  naked  one,  a  free- 
hold or  fee  simple  passed  to  the  feoffee  by  reason  of  the 
livery.  This  livery  of  seizin  was  the  investiture  or  delivery 
of  corporal  possession  of  the  land  to  the  feoffee,  and  was 
absolutely  necessary  to  complete  the  gift.  It  was  a  cor- 
poral transfer  of  the  soil  from  one  man  to  another  taking 
effect  in  presenti  or  not  at  all.  The  feoffee  was  a  principal 
actor  in  the  transfer,  and  passed  at  once  into  the  full  enjoy- 
ment of  the  fee.  (Litt.  §  595,  599,  611,  698  ;  Co.  Lift.  366, 
367  a  ;  2  Slack  Com.  310,  313.)  The  feoffinent,  which  could 
not  be  made  without  an  acceptance  of  the  possession  by  the 
feoffee,  whether  tortious  or  not,  operated  as  a  disseisin  of  the 
owner,  and  although  he  had  a  right  of  entry  by  action  in  the 
case  of  a  tortious  disseisin,  that  right  might  be  tolled  by  a 
descent  cast.  Consequently,  it  will  be  seen  that  the  accep- 
tance of  an  estate  passed  by  feoffment  and  livery  of  seizin 
differs  widely  from  the  acceptance  of  a  modern  conveyance 
by  grant  in  which  it  is  never  necessary  to  give  it  validity,  to 
enter  and  take  corporal  possession  of  the  land,  and  by  which 
the  grantor  may  obtain  a  fee,  or  a  less  estate,  or  no  estate  at 
all.  The  former  was  one  of  those  solemn  notorious  acts  in 
pais  to  which  the  common  law  attaches  peculiar  and  extraor- 
dinary efficacy  and  importance  ;  as  much  so  as  to  matters 
shown  by  record  or  writing  under  seal.  Hence,  Lord  Coke 
in  enumerating  estoppels  in  pais  includes  such  an  acceptance. 
But  who  ever  heard,  at  common  law,  that  where  an  interest 


NEW- YORK,  APRIL,  1848.  251 


Sparrow  v.  Kingman. 


in  lands  was  attempted  to  be  conveyed  by  deed-poll,  without 
livery,  that  the  grantee  who  accepted  the  deed  was  estopped 
from   controverting   the  seizin  of  the   grantor,  or  in  other 
words  from  shewing  that  nothing,  or  a  less  estate  than  a  fee, 
passed  by  such  deed  ?     Even  in  the  case  of  a  lessee  by  deed- 
poll  it  was  formerly  held  that  he  might  dispute  his  lessors 
title.     (Co.  Lift.  47  b.  ;  Litt.  Sec.  58 ;  1  Ld.  Raymond  746.) 
A  conveyance  by  feoffment,  with  livery  of  seizin,  has  lon^r 
fallen  into  disuse  even  in  England,  and,  at  least  with  us,  a 
grant  without  the  -ceremony  of  livery  is  made  competent  to 
convey  and  pass  all  the  estate  and  interest  which  the  grantor 
can  lawfully  convey.    Indeed,  a  grant  never  passed  any  thing 
more.     (Litt.  §  608.)     The  grant  not  operating  directly  upon 
the  possession  as  in  the  case  of  a  feoffment,  but  simply  on  the 
estate  and  interest  which  the  grantor  had  in  the  premises 
granted,  if  nothing  actually  passes,  it  is  obvious  there  can  be 
no  acceptance  of  an  estate ;  or  if  the  grantor  have  a  less 
estate  than  he  conveys,  only  the  estate  which  he  has  passes, 
and  the  acceptance  must  necessarily  be  of  the  estate  passed. 
So  that  in  the  conveyance  of  lands  by  deed,  the  question 
whether  there  has  been  an  acceptance  of  an  estate  by  the 
grantee,  and  the  extent  of  it,  depends  on  the  solution  of  the 
prior  question  whether  the  grantor  had  any  estate  to  convey, 
and  if  he  had,  what  is  its  real  nature.     A  point  which  must 
be  determined  by  proof  aliunde.     In  the  present  case  the 
opportunity  was  denied  to  the  defendant  below  of  solving  the 
question  whether  Kingman  had  any  estate  or  interest  to  pass 
by  his  deed ;  and  if  he  had,  the  nature  and  extent  of  it ;  and 
the  Judge  assumed  that  the  mere  acceptance  of  the  instru- 
ment,  whether  it  passed  any  thing  or  not,  was  sufficient  to 
estop  the  defendant  from  controverting  Kingman's  seizin. 

It  was  intimated  in  the  case  of  Springstein  vs.  Selicrmer- 
horn,  (12  John  R.  363)  that  Coke  Litt.  47,  b.  was  an  authority 
to  shew  that  a  grantee  generally,  under  any  form  of  convey- 
ance, was  concluded  from  denying  the  title  of  his  grantor. 
But  the  doctrine  is  far  from  being  sustained  by  the  authority. 
It  is  this,  ''  that  if  a  man  takes  a  lease  for  years  by  indenture. 


252  CASES  IN  THE  COURT  OF  APPEALS. 


Sparrow  v.  Kingman. 


of  his  own  lands,  whereof  ho  himself  is  in  actual  seizin  and  pos- 
session, this  estops  him  during  the  time  to  say  that  the  les- 
sor had  nothing  in  the  lands  at  the  time  of  the  lease  made,  but 
that  he  himself,  or  such  other  person,  was  then  in  actual  seizin 
or  possession  thereof ;  for  by  acceptance  thereof  by  indenture 
he  is,  for  the  time,  as  perfect  a  lessee  for  years,  as  if  the  lessor 
had  at  the  time  of  the  making  thareof  an  absolute  fee  and 
inheritance  in  him."  The  remarks  of  the  learned  text  writer 
are  limited  to  a  lease  indented  in  which  the  grantee  is  estopped 
by  his  own  contract  under  seal,  and  not  by  an  act  in  pais. 
The  extent  of  the  authority  is  that  the  lessee  is  concluded  by 
his  own  deed,  for  it  is  immediately  said,  "  but  if  such  lease  for 
years  were  made  by  deed-poll  of  lands  wherein  the  lessor  had 
nothing,  this  would  not  estop  the  lessee  to  aver  that  the  lessor 
had  nothing  in  those  lands  at  the  time  of  the  lease  made  > 
because  the  deed-poll  is  only  the  deed  of  the  lessor,  whereas 
the  indenture  is  the  deed  of  both  parties,  and  both  are  as  it 
were  put  in  and  shut  up  by  the  indenture,  that  is  where  both 
seal  and  execute  it,  as  they  may  and  ought."  (Co.  Lift.  47,  b. 
Bacon  s  Abrg.  "  Leases"  (0) ).  It  is  not  law  now,  that  a  lessee 
even  by  deed-poll,  who  retains  possession  under  his  lease,  may 
dispute  the  title  of  his  lessor,  but  it  was  in  the  time  of  Lord 
Coke,  and  hence  the  illustration  is  pertinent  and  conclusive 
in  limiting  and  defining  the  extent  of  the  authority  cited. 
Again,  it  has  been  repeatedly  held  that  it  may  be  shewn  that 
a  less  estate  passed  than  the  estate  mentioned  in  the  deed, 
although  it  be  an  indenture  :  which  could  not  be,  if  the  rule 
was  universal  that  a  grantee  is  concluded  by  an  acceptance  of 
the  conveyance.  (3  Wms.  Saundera  418,  note,  a  ;  2  Smith's 
Leading  Cases,  457;  4  Kent's  Com.  98.)  No  proposition  can 
be  more  undoubted,  than  that  the  grantee  in  a  deed-poll  is  never 
estopped  by  the  terms  of  the  grant,  for  it  is  not  his  deed, 
not  having  sealed  and  executed  it ;  and  it  seems  a  sheer 
absurdity  to  say  that  he  is  concluded  by  acceptance  of  a  con 
veyancc,  by  which  no  estate  actually  passed  to  him,  for  the 
reason  that  the  grantor  had  none  to  convey.  Such  a  doc- 
trine is  entirely  irreconcilable  with  the  system  of  modern 


NEW-YOKK,  APRIL,  1848.  253 

Sparrow  v.  Eingman. 


conveyancing  and  transfer  of  lands,  and  if  carried  out  would 
lead  to  innumerable  and  perplexing  difficulties.  Actions  on 
covenants  of  seizin,  or  warranty,  or  for  quiet  enjoyment  are 
of  daily  occurrence,  but  how  would  it  be  possible  ever  to 
maintain  them,  if  a  grantee  by  an  acceptance  of  the  deed  of 
his  grantor,  is  barred  from  showing  a  paramount  title,  or  a 
defect  in  the  estate  of  the  latter?  If  this  rule  prevailed, 
these  covenants  in  our  modern  conveyances  might  be  inserted 
as  ornaments,  but  would  be  of  little  practical  utility. 

Chief  Justice  Nelson,  in  the  case  of  the  Wetland  Canal 
Company  vs.  Hathaway,  (8  Wend.  483,)  defined  the  doc- 
trine of  an  estoppel  in  pais  as  follows :  "  As  a  general  rule, 
a  party  will  be  concluded  from  denying  his  own  acts  or  admis- 
sions which  were  expressly  designed  to  influence  the  conduct 
of  another,  and  did  so  influence  it,  and  when  such  denial  will 
operate  to  the  injury  of  the  latter."  He  adds  that  the  party 
will  be  concluded  "  when  in  good  conscience  and  honest  deal- 
ing he  ought  not  to  be  permitted  to  giansay"  his  acts  or  ad- 
missions. Bronson,  J.,  in  Dezell  vs.  Odell,  (3  Hill  225)  adopts 
this  definition  with  approbation,  and  adds,  "  A  party  is  only 
concluded  against  shewing  the  truth,  or  asserting  his  legal 
right,  when  that  would  have  the  effect  of  doing  a  wrong 
through  his  means  to  some  third  person."  Under  such  cir- 
cumstances, Justice  Cowen  remarks,  in  the  latter  case,  "  for 
the  prevention  of  fraud,  the  law  holds  the  act  or  admission  to 
be  conclusive."  It  must,  however,  have  been  acted  upon  by 
the  other  party.  The  party  who  accepts  the  deed  in  fee  of 
a  grantor  having  no  title  or  a  less  estate  than  he  conveys,  per- 
forms no  act  expressly  designed  to  influence  and  influencing 
the  conduct  of  the  latter  to  his  injury ;  nor  does  ho  make  any 
admission  which,  "  in  good  conscience  and  honest  dealing,  he 
ought  not  to  be  permitted  to  gainsay."  The  fraud,  if  any 
there  be,  is  on  the  part  of  the  grantor,  and  the  injury  will  fall 
solely  upon  the  grantee,  unless  he  be  permitted  to  shew  the 
truth.  There  is  no  relation  existing  between  the  grantee  in 
fee  and  his  grantor,  as  will  raise  even  an  implied  obligation  on 
the  part  of  the  former  against  a  denial  of  the  title  and  estate 


254  CASES  IN  THE  COURT  OF  APPEALS. 

Sparrow  r.  Kinguiau. 

of  the  latter.  In  Osterhout  vs.  Shoemaker,  (3  Sill  518)  the 
Court  undoubtedly  lays  down  the  true  rule.  Bronson,  T.,  in 
delivering  th3  opinion  of  the  Court,  says :  "  Although  a  te- 
nant cannot  question  the  right  of  his  landlord,  a  grantee  in 
fee  may  hold  adversely  to  the  grantor,  and  there  can  be  no 
good  reason  why  he  should  not  be  at  liberty  to  deny  that  the 
grantor  had  any  title.  There  is  no  estoppel  where  the  occu- 
pant is  not  under  an  obligation,  express  or  implied,  that  he 
will  at  some  time  or  in  some  event,  surrender  the  possession 
The  grantee  in  fee  is  under  no  such  obligation.  He  does  not 
receive  the  possession  under  any  contract,  express  or  implied, 
that  he  will  ever  give  it  up.  He  takes  the  land  to  hold  for 
himself,  and  to  dispose  of  it  at  his  pleasure.  He  owes  no 
faith  or  allegiance  to  the  grantor,  and  he  does  him  no  wrong 
when  he  treats  him  as  an  utter  stranger  to  the  title."  (See 
also  15  Mass.  R.  499.)  The  reason  of  the  rule  is  readily  seen 
why  a  tenant  in  possession  may  not  question  his  landlord's 
title,  or  a  vendee,  under  an  agreement  to  purchase,  that  of 
the  vendor.  He  has  obtained  the  possession  which  he  would 
not  otherwise  have  had,  "  under  an  obligation,  express  or  im- 
plied, that  he  will,  at  some  time  or  in  some  event,  surrender 
it."  The  law  will  hold  him  to  his  obligation.  But  even  in 
the  case  of  a  tenant  or  vendee,  should  he  first  restore  the  pos- 
session, there  would  be  no  obstacle  in  the  way  of  controvert- 
ing the  landlord  or  vendor's  title.  Originally,  at  common  law, 
as  we  have  seen,  the  lessee  by  deed  poll  might  always  dispute 
the  estate  of  the  lessor  ;  and  he  is  now  permitted  to  shew  that 
the  landlord  had  a  less  interest  than  he  demised.  In  Doe  vs. 
Barton,  (11  Adol.  and  Ellis  315,)  it  was  held  that  in  eject- 
ment the  tenant  may  protect  his  possession  against  his  land- 
lord by  shewing  that  the  title  of  the  latter  was  defeasible  un- 
der a  prior  mortgage,  at  the  time  the  lease  was  made,  and 
that  he  has  since  been  compelled  to  pay  rent  to  the  mortgagee, 
and  put  him  in  constructive  possession  of  the  premises.  Thus, 
even  in  the  case  of  a  lessee  where  there  has  been  a  construc- 
tive eviction,  as  in  Doe  vs.  Barton,  he  may  shew  a  state  of 
facts  in  the  protection  of  his  possession,  inconsistent  with  the 


NEW-YORK,  APRIL,  1848.  255 


Sparrow  u.  Kingman. 


claim  or  title  of  his  lessor.  Where  there  has  been  an  actual 
eviction  by  title  paramount,  this  right  has  never  been  doubted. 
It  would,  therefore,  be  strange  indeed,  if  a  grantee  in  fee, 
who  is  never  under  any  obligation  to  restore  the  possession, 
and  who  may  have  been  compelled  to  purchase  in  for  his  pro- 
tection an  outstanding  valid  title,  should  be  concluded  from 
shewing  that  no  title  passed  by  the  deed  of  his  grantor,  or 
that  the  estate  or  interest  which  passed  was  less  than  that 
mentioned  in  the  deed. 

I  am  of  the  opinion  that  the  judgment  of  the  Supreme 
Court  should  be  reversed,  and  am  content  to  place  my  vote 
for  reversal  on  the  distinct  ground,  that  in  an  action  for  dower 
the  grantee  in  fee  of  the  husband  is  not  concluded  from  affir- 
matively controverting  the  seizin  of  the  latter.  This  is  the 
law  of  England  and  of  Massachusetts,  and  if  an  opposite  rule 
has  heretofore  prevailed  in  this  State,  it  is  not  too  late  to  cor- 
rect the  error.  Where  property  has  been  acquired,  or  rights 
matured,  and  exist,  under  an  erroneous  decision  of  the  Courts, 
insomuch  that  irreparable  mischief  and  injury  must  necessarily 
result  from  its  overthrow,  the  maxim  of  stare  decisis  should 
prevail.  But  this  is  not  one  of  those  errors,  from  the  correc- 
tion of  which  injurious  consequences  may  follow. 

JEWETT,  CH.  J.  The  question  to  be  decided  in  this  case 
is,  whether  it  was  competent  for  the  defendant  to  show,  that 
Kingman  never  had  any  estate  of  inheritance  in  the  premises. 
The  Judge  decided  that  as  Kingman,  when  in  possession  had 
by  his  deed  to  Holley,  assumed  to  convey  in  fee,  and  as  the 
defendant  held  under  that  deed,  he  was  bound  by  it,  and  was 
estopped  from  setting  up  that  Kingman  had  not  an  estate  of 
which  his  wife  was  dowablc. 

It  cannot  be  denied,  but  that  the  decision  of  the  Judge 
on  the  trial  is  in  conformity  with  the  principles  settled  by  a 
series  of  cases  determined  by  the  Supreme  Court,  from  Ban- 
croft vs.  White,  (1  Caines  185)  to  Sherwood  vs.  Vandenburgh. 
(2  Hill  303.)  In  the  latter  case,  however,  the  late  Mr.  Justice 
Cowen  put  his  opinion  upon  the  ground  of  the  authorities , 


256  CASES  IN  THE  COURT  OF  APPEALS. 


Sparrow  v.  Kingnian. 


and  not  upon  the  ground,  that  the  doctrine  of  es:oppel  had 
been  in  those  cases  correctly  applied,  and  distinctly  suggested 
that  the  question  was  a  very  fit  one  for  review  in  the  Court 
for  the  correction  of  errors.  And  Mr.  Justice  Bronson  in 
Osterhout  vs.  Shoemaker,  (3  Hill  513)  remarked  in  reference 
to  the  cases  which  hold,  that  in  dower  the  grantee  of  the 
husband  is  estopped  to  deny  the  grantor's  title,  that  they 
were  to  be  followed  because  the  rule  had  been  so  settled,  and 
not  because  it  rested  on  any  sound  principle. 

As  defined  in  the  books,  "  an  estoppel  is  when  a  man  ia 
concluded  by  his  own  act  or  acceptance,  to  say  the  truth,"  of 
which  there  are  three  kinds.  By  matter  of  record,  by  deed, 
and  by  matter  of  pais.  The  estoppel  which  the  plaintiff 
claims  in  this  case  arises  by  matter  in  pais,  if  at  all ;  that 
species  arises,  by  livery,  by  entry,  by  acceptance  of  rent,  by 
partition,  and  by  acceptance  of  an  estate.  (Co.  Lift.  666,  667.) 

The  principle  in  respect  to  that,  which  arises  by  an  accept- 
ance of  an  estate,  is,  that  a  man  shall  not  be  permitted,  dur- 
ing his  possession  of  premises,  to  dispute  the  title  of  the 
landlord  under  whom  he  entered,  and  applies  only  in  cases 
where  the  party  accepting  the  estate  is  under  some  obligation, 
express  or  implied,  that  he  will  at  some  time  or  in  some  event 
surrender  the  possession.  "  The  grantee  in  fee,  is  under  no 
such  obligation.  He  docs  not  receive  the  possession  under 
any  contract  express  or  implied  that  he  will  ever  give  it  up. 
He  takes  the  land  to  hold  for  himself,  and  to  dispose  of  it  at 
pleasure.  He  owes  no  faith  or  allegiance  to  the  grantor,  and 
docs  him  no  wrong  when  he  treats  him  as  an  utter  stranger 
to  the  title." 

The  deed  from  Kingman  to  Ilollcy  was  a  mere  quit  claim, 
deed-poll,  of  one  part,  signed  by  Kingman  only.  Thcrefoie, 
no  one  at  common  law,  would  be  bound  by  it,  but  he,  and  it 
would  not  work  an  estoppel  against  the  grantee,  and  I  think 
not  as  against  the  grantor.  (Co.  Lift.  47,  61,  Shcp.  Touch. 
1  Am.  Ed.  53,  Right  vs.  Bucknell,  2  Barn  and  Adol.  278.) 
At  the  common  law,  all  the  parts  of  a  deed  indented  in  judg- 
ment of  law  made  but  one  deed,  and  every  part  was  of  as 


NEW-YORK,  APRIL,  1848.  257 

Sparrow  v.  Kingman. 

great  force  as  all  the  parts  together,  and  were  esteemed  the 
mutual  deeds  of  either  party,  and  either  party  might  be 
bound  by  either  part  of  the  same,  and  the  words  of  the  inden- 
ture were  the  words  of  either  party.  It  was  stronger  than  a 
deed-poll,  for  it  worked  an  estoppel  against  either  party  to 
say  or  except  any  thing  against  any  thing  contained  in  it. 
(1  Sheph.  Touch.  53  Plow.  434.) 

The  argument  on  the  side  of  the  plaintiff  is  that  Kingman 
assumed  to  convey  a  fee ;  and  that  as  the  defendant  held 
under  that  deed,  he  was  bound  by  that  assumption.  This,  I 
think  is  founded  upon  a  mistake  of  fact  as  well  as  of  law.  I 
have  already  remarked  that  the  deed  is  merely  a  quit  claim 
deed-poll ;  and  therefore,  upon  its  face  and  by  its  terms,  it 
only  purports  to  convey  whatever  interest  in  the  premises  the 
grantor  then  had.  It  does  not  affirm  that  he  had  any.  How 
then  can  the  grantor  be  supposed  conclusively  to  admit  that 
he  had  ?  If  the  admission  should  be  co-extensive  with  the 
grant,  it  would  be  but  conditional ;  that  is,  that  if  the  grantor 
had  any  right  or  interest,  which  passed  by  his  deed  it  vested 
in  Holley  the  grantee. 

And  now,  by  1  R.  S.  739,  §  143,  it  is  enacted  that  no 
greater  estate  or  interest  shall  be  construed  to  pass  by  any 
grant  or  conveyance,  thereafter  executed,  than  the  grantor 
himself  possessed  at  the  delivery  of  the  deed,  or  could  then 
lawfully  convey,  except  that  every  grant  should  be  conclusive 
as  against  the  grantor  and  his  heirs  claiming  from  him  by  de- 
scent ;  and  by  §  145,  it  is  declared  that  a  conveyance  made 
by  a  tenant  for  life  or  years,  of  a  greater  estate  than  he  pos- 
sessed or  could  lawfully  convey,  shall  not  work  a  forfeiture 
of  his  estate,  but  shall  pass  to  the  grantor  all  the  title,  estate, 
or  interest,  which  such  tenant  could  lawfully  convey. 

And  again,  by  1  R.  S.  748,  §  1,  it  is  declared  that  every 
grant  or  devise  in  real  estate,  or  any  interest  therein,  there- 
after to  be  executed,  shall  pass  all  the  estate,  or  interest  of 
the  grantor  or  testator;  unless  the  intent  to  pass  a  less 
estate  or  interest  shall  appear,  by  express  terms,  or  be  neces- 
sarily implied  in  the  terms  of  such  grant ;  and  §  2  provides 

33 


258  CASES  IN  THE  COURT  OF  APPEALS. 


Sparrow  c.  Kingnian. 


that  in  the  construction  of  every  instrument  creiting  or  con- 
veying, or  authorizing  the  creation  or  conveyance  of,  any 
estate  or  interest  in  lands,  it  shall  be  the  duty  of  Courts  of 
Justice,  to  carry  into  effect  the  intent  of  the  parties,  so  far 
as  it  can  be  collected  from  the  whole  instrument,  and  is  con- 
sistent with  the  rules  of  law.  Now,  I  do  not  think  that  we 
are  authorized  to  say  that  Kingman  assumed  by  his  deed  to 
convey  a  fee ;  the  clear  intent,  as  well  as  expression  of  his 
deed,  is  to  convey  only  what  interest  or  estate  he  then  had  in 
the  premises.  But  again.  Co.  Litt.  352  a,  shows,  that 
every  estoppel  must  be  reciprocal,  that  is  to  bind  both  par- 
ties, and  that  is  the  reason  that,  regularly,  a  stranger  shall 
neither  take  advantage  of,  nor  be  bound  by,  the  estoppel ; 
but  privies  in  blood,  as  the  heir,  and  privies  in  estate,  as  the 
feoffee,  lessee,  &c. ;  privies  in  law.  as  the  lord  by  escheat,  ten- 
ant by  the  courtesy,  tenant  in  dower,  the  incumbent  of  a 
benifice,  and  others  that  come  in  under  by  act  of  law,  or  in  the 
post,  shall  be  bound  by,  and  take  advantage  of  estoppels ;  and 
Coke,  in  his  twenty-first  reading  on  fines,  says  "  estoppel  is  re- 
ciprocal on  both  sides  ;  for  he  that  shall  not  be  concluded  by  a 
record  or  other  matter  of  estoppel,  shall  not  conclude  another 
by  it."  (Doe  vs.  Martin,  8.  Barn,  and  Cress.  497.) 

Now  Kinginan  himself  would  not  have  been  estopped  by  his 
deed  to  Holley  from  showing  that  no  title  passed  by  it,  on  the 
ground  that  it  contains  no  covenant  of  warranty  ;  an  after  ac- 
quired estate  by  a  grantor  passes  to  his  previous  grantee  by 
the  rule  of  estoppel,  only  when  there  are  such  covenants  of 
warranty,  and  then  to  avoid  circuity  of  action.  (Jackson  vs. 
ffubbell,  1  Cowen  616  ;  Jackson  vs.  Bradford,  4  Wend.  622  ; 
Jackson  vs.  Waldron,  13  Wend.  178.) 

The  plaintiff  could  not  claim  any  thing  by  the  rule  cf  estop- 
pel, in  respect  to  the  deed  executed  by  her  husband  to  Ilolley. 
She  is  a  stranger  to  it ;  her  right  to  dower  rests  upon  the  title 
or  estate  which  her  husband  acquired  prior  to  his  deed  to  Ilol- 
ley, and  is  derivable  under  his  grantor.  This  would  be  a  suf- 
ficient reason  why  she  could  not  estop  the  grantee  of  her  hus- 


NEW-YORK,  APRIL,  1848.  259 

Sparrow  v.  Kingman. 

band.     There  would  be  no  mutuality,  as  she  would  not  be 
bound  by  it.     (Jewell  vs.  Harrington,  19  Wend.  471.) 

The  plaintiff'  is  not  entitled  to  dower  in  any  other  lands 
than  in  which  her  husband,  during  the  marriage,  was  seized  of 
an  estate  of  inheritance  :  and  I  think  it  clear  that  when  she 
claims  dower,  the  defendant  is  at  liberty  to  show  in  his  defence 
that  her  husband  was  not,  during  the  marriage,  seized  of  such 
an  estate.  (Craunt  vs.  Wainman,  3  Sing.  N.  C.  69.) 

I  am  therefore  of  opinion  that  the  judgment  should  be  re- 
versed, and  that  a  venire  de  novo  should  be  awarded  by  the 
Supreme  Court,  with  costs,  to  abide  the  event. 
\ 

RUGGLES,  JONES,  JOIJVOON  and  GRAY,  Js.?  concurred  in  the 
result  of  the  preceding  opinions. 

BRONSON,  J.,  dissenting.  As  to  one-half  of  the  Erie  Mills, 
the  defendant  derived  his  title  and  possession  from  George  G. 
Kingman,  the  plaintiff's  husband  ;  and  still  holds  under  that 
title.  So  long  as  he  thus  holds,  he  is  estopped  from  denying 
the  seizin  of  the  husband,  in  an  action  brought  by  the  widow 
to  recover  her  dower.  (Hitchcock  v.  Harrington,  6  John. 
290 ;  Collins  v.  Torry,  7  John.  278  ;  Hitchcock  v.  Carpen- 
ter, 9  John.  344 ;  Davis  v.  Darroiv,  12  Wend.  65  ;  Boivne 
v.  Potter,  17  Wend.  164 ;  Sherwood  v.  Vandenburgh,  2 
Hill  303.)  Questionable  as  I  think  this  doctrine  was  at  the 
first,  (2  Hill  308,  3  Hill  518,  519,)  it  has  prevailed  too  long 
in  this  State  to  be  now  overturned  by  a  judicial  decision.  If 
there  is  any  good  reason  for  changing  the  rule,  the  change 
should  be  made  by  the  Legislature,  and  not  by  the  Courts. 

In  Maine  and  New  Jersey  the  rule  is  the  same  as  it  is  with 
us.  (Kimball  v.  Kimball,  2  G-reenl.  226  ;  Nason  v.  Allen, 
6  id.  243  ;  Hains  v.  G-ardner,  1  Fairf.  383 ;  Hamblin  v. 
Bank  of  Cumberland,  19  Maine,  (1  Appleton)  66  ;  English  v. 
Wright,  Coxe  (N.  J.)  Rep.  437.)  In  Massachusetts  it  is  the 
other  way.  (Small  -v.  Procter,  15  Mass.  495.) 

So  long  as  those  claiming  under  the  husband  have  not  been 
disturbed  in  the  enjoyment  of  the  property,  there  is  no  very 


260  CASES  IN  THE  COURT  OF  APPEALS. 


Sparrow  v.  Kinsman. 


good  reason  for  allowing  them  to  defeat  the  widow's  claim  to 
dower,  by  setting  up  an  outstanding  title,  which  may  never  be 
asserted ;  and  the  current  of  adjudication  in  this  State  has 
not  carried  the  estoppel  beyond  cases  of  that  description. 
There  is,  I  admit,  no  principle  upon  which  the  estoppel  can 
be  carried  another  step,  and  applied  to  a  case  where  the  hus- 
band's grantee  has  been  obliged  to  purchase  in  a  good  out- 
standing title  for  the  purpose  of  protecting  his  possession ; 
and  if  the  case  of  Bowne  v.  Potter,  (17  Wend.  164,)  must 
be  considered  as  going  that  length,  I  agree  that  it  cannot  be 
supported.  But  there  is  no  such  question  in  this  case. 

This  writ  of  error  has,  I  presume,  been  brought  in  conse- 
quence of  the  opinion  which  had  been  expressed  by  Mr.  Jus- 
tice Cowen  and  myself,  and  which  opinion  I  still  entertain, 
that  originally  the  doctrine  of  estoppel  was  improperly  ap- 
plied to  this  class  of  cases.  (Sherwood  vs.  Vandenburgh,  2 
Hill  303-9  ;  Osterhout  v.  Shoemaker,  3  id.  518-19.)  But  it 
will  be  seen  that  neither  of  us  felt  at  liberty  to  depart  from 
the  rule  as  it  had  been  settled,  nor  do  I  feel  so  now.  After 
an  erroneous  decision  touching  rights  of  property  has  been 
followed  thirty  or  forty  years,  or  even  a  much  less  time,  the 
Courts  cannot  retrace  their  steps  without  committing  a  new 
error  nearly  as  great  as  the  one  at  the  first. 

The  defendant's  counsel  places  great  reliance  upon  a  remark 
of  Mr.  Justice  Cowen,  to  the  effect,  that  although  the  point 
was  too  firmly  established  to  be  revised  by  the  Supreme  Court, 
it  might  still  be  a  fit  question  for  review  in  the  Court  of  Errors. 
There  was,  I  think,  a  good  deal  of  irony  in  that  remark. 
Surely  the  learned  Judge  did  not  intend  to  be  understood  that 
what  was  settled  law  in  one  Court,  was  not  also  good  law  in 
all  the  other  Courts  of  the  State ;  that  a  Justice  of  the  Su- 
preme Court,  when  sitting  in  his  own  Court,  was  bound  to  dc 
cide  one  way,  and  when  sitting  in  the  Court  of  Errors,  was  at 
liberty  to  decide  the  other  way.  The  thing  is  preposterous. 
The  remark  in  question  was  made  concerning  a  Court  which 
not  only  corrected  erroneous  decisions,  but  sometimes  took  the 
liberty  of  reforming  the  law  itself,  whore  it  was  supposed  to 


NEW-YORK,  APRIL,  1848. 


261 


Shindler  v  Houston. 


need  improvement.  I  claim  no  such  prerogative.  I  am  of 
Opinion  that  the  judgment  of  the  Supreme  Court  should  be 
affirmed. 

GARDINER,  J.,  having  been  engaged  professionally  in  the 
Cause,  gave  no  opinion. 

Judgment  reversed,  and  venire  de  novo  awarded. 


. 


A      ,'  Fit 


SHINDLER  vs.  HOUSTON. 


PUintifi'ond  defendant  bargained  respecting  the  sale,  by  the  former  to  the  latter,  of 
t  quantity  of  lumber,  piled  apart  from  other  lumber,  on  a  dock  and  in  view  of 
the  parties  at  the  time  of  the  bargain,  and  which  had  before  that  time  been 
measured  and  inspected.  The  parties  having  agreed  as  to  the  price,  the  plain- 
lid'  said  to  the  defendant,  ''tlm  lumber  is  yours?  The  defendant  then  told  the 
plaintiff  to  jrct  the  Inspector's  bill,  and  take  it  to  one  House,  who  would  pay  the 
amount.  This  was  done  the  next  day,  but  payment  was  refused.  The  price 
was  over  fifty  dollars,  lldd.  in  an  action  to  recover  the  price,  that  there  was 
no  delivery  and  acceptance  of  the  lumber,  within  the  meaning  of  the  statute  of 
frauds,  and  that  the  sale  was  therefore  void. 

It  seems  that  to  constitute  a  delivery  and  acceptance  of  goods,  sucn  as  the  statute 
requires,  something  more  than  mere  words  is  necessary.  Supcradded  to  the 
language  of  the  contract,  there  must  be  some  act  of  the  parties,  amounting  to  a 
transfer  of  the  possession,  and  an  acceptance  thereof  by  the  buyer.  The  case  of 
cumbrous  articles  is  not  an  exception  to  this  rule. 

On  error  from  the  Supreme  Court.  Houston  sued  Shindler 
in  the  Justices'  Court,  of  the  city  of  Troy,  in  assumpsit,  for 
the  price  of  a  quantity  of  lumber.  The  plaintiff  having 
recovered,  the  defendant  appealed  to  the  Mayor's  Court  of 
that  city,  and  on  the  trial  in  that  Court,  the  case  was  this  :  — 
The  plaintiff  was  the  owner  of  about  2070  feet  of  curled 
maple  plank  and  scantling,  which  he  had  brought  to  Troy  in 
a  boat,  and  which,  after  being  inspected  and  measured,  was 
piled  on  the  dock  apart  from  any  other  lumber.  Soon  after 
this,  the  plaintiff  and  defendant  met  at  the  place  where  the 


261 

s      HA     680 
;s49  AD  316n 


10 
10 
38 
40 
40 
40 
44 
51 
51 
65 
65 
65 
71 
3K 


=291 
=292 
2227 
2524 
2525 
2531 
2647 
2214 
2215 
2  26 
2  27 
2374 
2295 
2410 
1  AbD  187 

1  AbD  188 

2  Tr      358 
7Tr          3 
7Tr          5 


262       CASES  IN  THE  COURT  OF  APPEALS. 

Shindler  v.  Houston. 

lumber  lay.  The  plaintiff  said  to  the  defendant,  "  what  will 
you  give  for  the  plank  ?"  The  defendant  said  he  would  give 
three  cents  a  foot.  The  plaintiff  then  asked,  "  what  will  yoa 
give  for  the  scantling?"  The  defendant  replied,  one  and  a 
half  cents  a  foot.  The  plaintiff  then  said,  "  the  lumber  is 
yours."  The  defendant  then  told  the  plaintiff  to  get  the  In- 
spector's bill  of  it,  and  carry  it  to  Mr.  House,  who  would  pay 
it.  The  next  day  the  plaintiff,  having  procured  the  Inspec< 
tor's  bill,  presented  it  to  House,  who  refused  to  pay  it,  on 
the  ground  that  the  instructions  he  had  received  from  the 
defendant  did  not  correspond  with  the  plaintiff's  statement 
of  the  contract.  There  was  no  note  or  memorandum  of  the 
contract  in  writing,  nor  was  there  any  evidence  of  a  delivery 
or  acceptance  of  the  lumber,  except  as  above  stated.  At  the 
prices  agreed  on,  the  lumber  came  to  $52  51,  no  part  of 
which  was  ever  paid.  The  Mayor's  Court  instructed  the  jury 
that  if  they  were  satisfied  that  it  was  the  intention  of  the 
parties  to  consider  the  lumber  delivered  at  the  time  of  the 
bargain,  and  that  nothing  further  was  agreed  or  contemplated 
to  be  done,  in  order  to  change  the  title  in,  or  possession  of 
the  lumber,  the  plaintiff  was  entitled  to  recover  ;  that  the  sale 
was  not  within  the  statute  of  frauds,  and  did  not  require  any 
note  or  memorandum  in  writing,  provided  they  should  find 
from  the  evidence,  that  there  was  a  delivery  anri  acceptance 
of  the  lumber  at  the  time  of  the  bargiuu.  The  defendant 
excepted  and  the  jury  found  a  verdict  for  the  plaintiff,  on 
which  judgment  was  rendered  in  his  favor.  The  Supremo 
Court,  on  writ  of  error  to  the  Mayor's  Court,  affirmed  the 
judgment,  (See  1  Denio,  48)  and  the  defendant  brings  error 
to  this  Court. 

N.  Hill,  jr.,  for  plaintiff  in  error,  insisted,  that  the  sale  waa 
within  the  statute  of  frauds  requiring  a  note  in  writing. 
There  was  no  acceptance  or  receipt  of  the  lumber  by  the 
^endee  within  the  intent  and  meaning  of  the  statute.  To 
take  the  case  out  of  the  statute  there  must  be  something  raoro 
than  would  be  sufficient  to  change  the  property  at  common 


NEW  YORK,  APRIL;  1848.  263 

Sbmdler  v.  Houston. 

law — something  more  than  would  be  sufficient  to  constitute  a 
delivery  at  common  law.  There  should  be,  (1)  a  bargain 
intended  to  change  the  right  of  property.  This  is  the  act  of 
both  parties.  (2)  a  delivery  of  the  property  and  the  actual 
possession  to  the  vendee,  discharged  of  all  lien  for  the  pur- 
chase money,  This  is  the  act  of  the  seller.  (3)  An  accept- 
ance and  receipt  of  the  entire  property,  and  actual  posses- 
sion of  some  part  of  the  goods,  as  absolute  owner,  discharged 
of  all  lien.  These  are  the  acts  of  the  buyer.  There  was 
nothing  proved  in  this  case  but  the  bargain.  (3  Bos.  and 
Puller,  233 ;  6  Barn,  and  Cress.  351 ;  Oh.  on  Cont.  389, 390 ; 
3  Dowl  and  Ryl.  220,  822  ;  2  Barn,  and  Cress.  37  ;  3  Johns. 
399  ;  10  Bing.  101,  376 ;  5  Barn,  and  Cress.  857,  5  ;  3  Barn, 
and  Aid.,  321,  680 ;  5  Do.,  559 ;  4  Mees.  and  W.,  155 ;  1 
Dowl.  and  Ryl.  128  ;  22  Wend.  659 ;  1  Carr.  and  Payne, 
272  ;  3  Barn,  and  Cress.  1 ;  2  Carr.  and  Payne,  532 ;  4 
Maule  and  Sel.  262 ;  9  Barn,  and  Cress.  591 ;  7  T.  Rep,  15, 
17  ;  1  C.  and  M.,  333  ;  6  Wend.,  400 ;  11  Johns.,  284.) 

J.  A.  Spencer  and  D.  Willard,  for  defendant  in  error, 
cited,  Bates  v.  ConJclin,  10  Wend.  389  ;  Chaplain  v.  Rogers, 
1  East,  192 ;  Jewett  v,  Warren,  12  Mass.  300 ;  2  Kent. 
Comm.  500,  501,  4th  Ed. 

GARDINER,  J.  As  no  part  of  the  purchase  money  was  paid 
by  the  vendee,  the  contract  above  stated  was  void  by  the 
statute  of  Frauds,  (2  R.  S.  136,  §  3,  subd.  3)  unless  the  buyer 
"accepted  and  received"  the  whole  or  a  part  of  the  property 
sold. 

The  object  of  the  statute  was  not  only  to  guard  against 
the  dishonesty  of  parties  and  the  perjury  of  witnesses,  but 
against  the  misunderstanding  and  mistakes  of  honest  men. 
If  the  contract  is  reduced  to  writing,  and  "  subscribed  by  the 
parties  to  be  charged  thereby,''  this  object  is  effectually  at- 
tained. The  writing  becomes  its  own  interpreter.  Where 
this  is  omitted  but  the  vendee  has  paid  part  of  the  price,  or 
the  vendor  has  delivered  and  the  buyer  has  accepted  a  portion 


264  CASES  IN  THE  COURT  OF  APPEALS. 


Shindler  v.  Houston. 


or  all  of  the  property,  upon  the  strength  of  the  agreement. 
These  acts  not  only  indicate  deliberation  and  confidence  upon 
the  part  of  the  contractors,  but  they  furnished  unequivocal 
evidence  of  the  existence  of  a  contract  of  some  sort  betweec 
them,  although  its  terms  and  provisions  must  after  all  depend 
upon  the  recollection  of  "witnesses. 

The  case  before  us  is  destitute  of  all  such  collateral  evi- 
dence. No  acts  of  the  party  sought  to  be  charged  are  proved. 
We  are  presented  with  a  naked  verbal  agreement.  The  de- 
clarations relied  upon  as  evidence,  of  a  delivery  and  acceptance 
constitute  a  part  of  the  contract,  and  of  course  are  obnoxious 
to  all  the  evils  and  every  objection  against  which  it  was  the 
policy  of  the  law  to  provide. 

The  acts  of  part  payment,  of  delivery  and  acceptance  men- 
tioned in  the  statute  are  something  over  and  beyond  the  agree- 
ment of  which  they  are  a  part  performance,  and  which  they 
assume  as  already  existing.  The  entire  absence  of  such  evi- 
dence distinguishes  the  present  case  from  all  those  that  have 
been  cited  by  the  counsel  for  the  plaintiff  in  support  of  this 
action.  (Chaplain  vs.  Rogers,  1  East,  193  ;  Jewett  vs.  War- 
ren, 12  Mass.  311 ;  Riddle  vs.  Varnum,  20  Pick,  280 ;  10 
Wend.,  391;  Kent  Com.,  4th  Ed.  500,  501.)  The  strong 
«ase,  from  the  Pandects  of  the  Column  of  Granite  is  not  an 
exception  ;  for  it  is  fairly  to  be  inferred  that  the  consent  of 
the  vendor  that  the  purchaser  should  take  possession  was  sub- 
sequent to  the  sale. 

1  am  aware  that  there  are  cases  in  which  it  has  been  ad- 
judged, that  where  the  articles  sold  are  ponderous,  a  symboli- 
cal or  constructive  delivery  will  be  equivalent  in  its  legal  effect 
to  an  actual  delivery.  The  delivery  of  a  key  of  a  warehouse 
in  which  goods  sold  are  deposited,  furnishes  an  example  of 
this  kind.  But  to  aid  the  plaintiff,  an  authority  must  be  shown 
that  a  stipulation  in  the  contract  of  the  sale,  for  the  delivery 
of  the  key  or  other  indicia  of  possession  will  constitute  a 
delivery  and  acceptance  within  the  statute.  No  such  case 
can  be  found.  The  entire  contract  being  void  by  the  statute, 
the  stipulation  in  reference  to  a  constructive  delivery  would 


NEW  YORK,  APRIL.   18-18. 


Shindler  v  Houston. 


fall  with  the  other  provisions.  In  Philips  vs.  Bristol,  (2  B. 
and  C.  511,)  the  property  was  sold  by  an  auctioneer  and 
delivered  to  the  purchaser,  who  after  detaining  it  three  or 
four  minutes  handed  it  back  saying  he  was  mistaken  as  to  the 
price.  The  vendor  refused  to  receive  the  property,  and  the 
jury  found  that  the  excuse  was  false  in  fact.  The  verdict  was 
set  aside  :  The  Court  saying  that  to  satisfy  the  statute  there 
must  be  a  delivery  by  the  vendor,  with  an  intention  of  vest- 
ing the  right  of  possession  in  the  vendee,  and  there  must  be 
an  actual  acceptance  by  the  latter  with  the  intent  of  taking 
possession  as  owner. 

This,  I  apprehend,  is  the  correct  rule  and  it  is  obvious,  that 
it  can  only  be  satisfied  by  something  done  subsequent  to  the 
sale  unequivocally  indicating  the  mutual  intentions  of  the 
parties.  Mere  words  are  not  sufficient.  (3  Johns.  421.) 
Declarations  accompanying  an  act  and  explanatory  of  it  are 
undoubtedly  admissible  evidence,  as  a  part  of  the  res  gestat. 
This  is  all  that  is  established  by  the  modern  authorities.  (12 
Mm.,  301 ;  1  Dallas,  171 ;  2  Barn,  and  Cress.  44 ;  3  J 
R.  421). 

In  a  word  the  statute  of  fraudulent  conveyances  and  con 
tracts,  pronounced  this  agreement  when  made,  void,  unless 
the  buyer  should  "  accept  and  receive  some  part  of  the  goods." 

The  language  is  unequivocal  and  demands  the  action  of 
both  parties,  for  acceptance  implies  delivery,  and  there  can 
be  no  complete  delivery  without  acceptance.  The  defendant, 
however,  said  nothing  and  did  nothing  subsequent  to  the  agree- 
ment except  through  his  agent  to  repudiate  the  contract. 
There  was  consequently  no  evidence  of  a  delivery. 

I  think,  therefore,  the  learned  Recorder  erred  in  submit- 
ting that  question  to  the  jury,  and  that  the  judgment  of  the 
Supreme  Court  should  be  reversed. 

The  Statute  of  Frauds  has  been  pronounced  by  high  au- 
thority, (Kent's  Oomm.  -  V.,  494)  to  be,  in  many  respects, 
the  most  comprehensive,  salutary,  and  important  legislative 
regulation  on  record,  affecting  the  security  of  private  rights. 
Its  benefits  it  is  believed  will  be  most  effectually  secured,  by 

34 


2 GO  CASES  IN  THE  COURT  OF  A  .'PEALS 


.  Houston. 


rejecting  refined  distinctions,  overlooking  the  supposed  equity 
of  particular  cases,  and  adhering  steadily  to  its  language  as 
the  best  exponent  of  the  intention  of  the  Legislature. 

BRONSON,  J.  On  a  review,  and  a  more  full  consideration 
of  the  case,  I  am  satisfied  that  I  was  in  an  error  in  assenting 
to  the  judgment  which  was  rendered  by  the  Supreme  Court. 
If  we  assume  that  the  sale  was  in  all  other  respects  complete, 
the  difficulty  still  remains  that  there  was  no  delivery  of  the 
goods.  Nothing  was  done.  As  was  very  justly  remarked  by 
the  defendant's  counsel,  there  was  nothing  but  mere  words  ; 
anil  the  statute  plainly  requires  something  more ;  it  calls  for 
acts.  (Per  Cowen,  </.,  in  Archer  vs.  Zeh,  5  Hill  205.)  A 
writing  must  be  made,  part  of  the  purchase  money  must  be 
paid,  or  the  buyer  must  accept  and  receive  part  of  the  goods. 
Merc  words  of  contract,  unaccompanied  by  any  act,  cannot 
amount  to  a  delivery.  To  hold  otherwise  would  be  repealing 
the  statute. 

There  may  be  a  delivery  without  handling  the  property,  or 
changing  its  position.  But  that  is  only  where  the  seller  does 
an  act  by  which  he  relinquishes  his  dominion  over  the  proper- 
ty, and  puts  it  in  the  power  of  the  buyer ;  as  by  delivering 
the  key  of  the  warehouse  in  which  the  goods  are  deposited,  or 
directing  a  bailee  of  the  goods  to  deliver  them  to  the  buyer, 
vath  the  assent  of  the  bailee  to  hold  the  property  for  the  new 
owner.  In  such  case  there  i*,  in  addition  to  the  words  of  bar- 
gain, an  act  by  which  the  dominion  over  the  goods  is  trans- 
ferred from  the  seller  to  the  buyer.  Here  there  was  no  de- 
livery either  actual  or  symbolical. 

I  shall  not  review  the  cases  on  this  subject  further  than  to 
notice  those  supposed  to  favor  the  plaintiff.  In  Chaplin  vs. 
Rogers,  (1  East.  102,)  the  buyer  had  re-sold  the  property,  and 
his  vendee  had  carried  it  away.  The  Court  held  that  there 
was  sufficient  evidence  to  carry  the  cause  to  the  jury  on  the 
question  of  delivery  to  and  acceptance  by  the  first  purchaser. 
Bates  vs  Conktint/,  (10  Wend.  380,)  was  a  writ  of  error,  and 
the  question  of  delivery  did  not.  arise,  because,  as  the  Chief 


NEW-YORK,  APRIL.   1848.  267 


Shindler  v.  Houston. 


Justice  remarked,  the  point  was  not  made  in  the  Court  below, 
where  it  might  have  been  obviated  by  testimony.  It  was  also 
suggested  at  the  bar,  in  answer  to  this  case,  that  the  question 
arose  upon  a  contract  for  work  and  labor,  rather  than  a  con- 
tract of  sale.  But  it  would  be  difficult  to  maintain  that  doc- 
trine. (Downs  vs.  J?os<s,  23  Wend.  270.)  It  is  enough,  how- 
ever, that  what  was  said  in  Bates  vs.  Conkling,  about  the 
delivery  of  cumbersome  articles,  was  but  a  dictum,  and  not 
upon  the  point  in  judgment.  In  Jewett  vs.  Warren,  (12  Mass. 
300,)  where  logs  in  a  boom  were  sold,  there  was  a  bill  of  par- 
cels ;  and  no  question  upon  the  statute  of  frauds  either  was 
or  could  be  made.  The  question  was,  whether  there  had  been 
a  sufficient  delivery  to  constitute  the  logs  a  valid  pledge.  We 
have  not  been  referred  to  any  modern  case,  nor  have  I  met 
with  any  which  will  uphold  this  judgment. 

It  is  undoubtedly  true,  that  it  will  not  always  be  easy  to 
make  an  actual  delivery  of  bulky  and  ponderous  articles.  But 
there  are  other  ways  of  satisfying  the  statute  of  frauds.  The 
parties  may  put  their  agreement  in  writing,  or  the  buyer  may 
pay  the  whole  or  some  part  of  the  purchase  money. 

I  am  of  opinion  that  the  judgments  of  the  Supreme  Court 
and  the  Mayor's  Court  should  be  reversed,  and  a  venire  de 
novo  be  awarded. 

WRIGHT,  J.  There  being  no  note  or  memorandum  made 
in  writing,  of  the  contract  or  earnest  paid,  this  is  a  case  with- 
in the  statute  of  frauds,  unless  there  was  an  acceptance  and 
receipt  of  the  whole  or  a  part  of  the  property  by  the  buyer. 
(2  R.  S.  136,  §  3.)  If  there  was  an  acceptance  shewn  suffi- 
cient to  take  the  case  out  of  the  operation  of  the  statute,  it 
was  of  all  the  lumber,  as  it  is  not  pretended  that  the  entire 
property  vested  in  the  vendee  by  the  acceptance  and  receipt 
of  a  part  thereof.  The  question,  therefore,  for  consideration 
upon  the  facts  proved,  is  whether  there  was  an  acceptance  and 
receipt  of  the  lumber  by  Shindler,  the  vendee,  within  the  in- 
tent and  meaning  of  the  statute. 

It  is  to  be  regretted  that  the  plain  meaning  of  the  statute 


268  CASES  IN  THE  COURT  OK  APPEALS. 


Shmdler  r.  Houston. 


should  ever  hare  been  departed  from,  and  that  any  thing  short 
of  an  actual  delivery  and  acceptance  should  have  been  regard- 
ed as  satisfying  its  requirements,  when  the  memorandum  waa 
omitted  ;  but  another  rule  of  interpretation  which  admits  of  a 
constructive  or  symbolical  delivery  has  become  too  firmly  es- 
tablished now  to  be  shaken.  The  uniform  doctrine  of  the 
cases,  however,  has  been,  that  in  order  to  satisfy  the  statute 
there  must  be  something  more  than  mere  words — that  the  act 
of  accepting  and  receiving  required  to  dispense  with  a  note  in 
writing,  implies  more  than  a  simple  act  of  the  mind,  unless 
the  decision  in  Elmore  vs.  Stone  (1  Taunton,  458)  is  an  ex- 
ception. This  case,  however,  will  be  found  upon  examination 
to  be  in  accordance  with  other  cases,  although  the  acts  and 
circumstances  relied  upon  to  shew  a  delivery  and  acceptance, 
were  extremely  slight  and  equivocal ;  and  hence  the  case  was 
doubted  in  Howe  vs.  Palmer,  (3  Barn,  and  Aid.  324)  and  Proc- 
tor vs.  Jones,  (2  Carr.  and  Payne,  534)  and  has  been  virtually 
overruled  by  subsequent  decisions.  Far  as  the  doctrine  of 
constructive  delivery  has  been  sometimes  carried,  I  have  been 
unable  to  find  any  case,  that  comes  up  to  dispensing  with  all 
acts  of  parties,  and  rests  wholly  upon  the  memory  of  witnesses 
as  to  the  precise  form  of  word*  to  shew  a  delivery  and  receipt 
of  the  goods.  The  learned  author  of  the  Commentaries  on 
American  Law,  cites  from  the  Pandects  the  doctrine  that  the 
consent  of  the  party  upon  the  spot  is  sufficient  possession  of 
a  column  of  granite,  which  by  its  weight  and  magnitude,  was 
not  susceptible  of  any  other  delivery.  But  so  far  as  this  cita- 
tion may  be  in  opposition  to  the  general  current  of  decisions 
in  the  Common  Law  Courts  of  England  and  of  this  country, 
it  is  sufficient  perhaps  to  observe  that  the  Roman  law  has 
nothing  in  it  analagous  to  our  statue  of  fraud.?.  In  Elmore 
vs.  Stone,  expense  was  incurred  by  direction  of  the  buyer,  and 
the  vendor,  at  his  suggestion,  removed  the  horses  out  of  his 
sale  stable  into  another,  and  kept  them  at  livery  for  him.  In 
(Jhaplin  vs.  Rogers  (1  Eaat  192)  to  which  we  were  referred 
on  the  argument,  the  buyer  sold  part  of  the  hay,  which  the 
purchaser  had  taken  away  ;  thos  dealing  with  it  as  if  it  were 


NEW  YORK,  APRIL,  1848.  269 


Shindler  r.  Houston. 


in  his  actual  possession.     In  the  case  of  Jewett  vs.    Warren 
(12  Mass.  R.  800)  to  which  we  were  also  referred,  no  ques- 
tion of  delivery  under  the  statute  of  frauds  arose.     The  sale 
was  not  an  absolute  one,  but  a  pledge  of  the  property.     The 
cases  of  Elmore  vs.  Stone  and  Chaplin  vs.  Rogers  are  the 
most  barren  of  acts  indicating  delivery,  but  these  are  not  au- 
thority for  the  doctrine  that  words,  unaccompanied  by  acts  of 
the  parties,  are  sufficient  to  satisfy  the  statute.     Indeed,  if 
any  case   could   be  shown  which    proceeds   to   that    extent, 
and  this  Court  should  be  inclined  to  follow  it,  for  all  benefi- 
cial purposes,  the  law  might  as  well  be  stricken  from  our  stat- 
ute book ;  for  it  was  this  species  of  evidence,  so  vague  and 
unsatisfactory,  and  so  fruitful  of  frauds  and  perjuries,  that 
the  Legislature  aimed  to  repudiate.     So  far  as  I  have  been 
able  to  look  into  the  numerous  cases  that  have  arisen  under 
the  statute,  the  controlling  principle  to  be  deduced  from  them 
is,  that  when  the  memorandum  is  dispensed  with,  the  statute 
is  not  satisfied  with  any  thing  but  unequivocal  acts  of  the  par- 
ties ;  not  mere  words  that  are  liable  to  be  misunderstood  and 
misconstrued,  and  dwell  only  in  the  imperfect  memory  of  wit- 
nesses.    The  question  has  been,  not  whether  the  words  used 
were  sufficiently  strong  to  express  the  intent  of  the  parties, 
but  whether  the  acts  connected  with  them,  both  of  seller  and 
buyer,  were  equivocal  or  unequivocal.     The  best  considered 
cases  hold  that  there  must  be  a  vesting  of  the  possession  of 
the  goods  in  the  vendee,  as  absolute  owner,  discharged  of  all 
lien  for  the  price  on  the  part  of  the  vendor,  and  an  ultimate 
acceptance  and  receiving  of  the  property  by  the  vendee,  so 
unequivocal  that  he  shall  have  precluded  himself  from  taking 
any  objection  to  the  quantum  or  quality  of  the  goods  sold. 
(Chitty  on  Contracts  390,  and  cases  cited;  Jlilliard,  on  Sates 
135,  and  cases  cited;  10  Bing.  10*2,  384.)     But  will  proof 
of  words  alone  shew  a  delivery  and  acceptance  from  which 
consequences  like  these  may  be  reasonably  inferred  ?     Espe- 
cially, if  those  words  relate  not  to  the  question  of  delivery  and 
aeeeptancc,  but  to  the  contract  itself?     A.  and  B.  verbally 
contract  for  the  sale  of  chattels,  for  rcadv  mouev  :   and  with- 


270  CASES  IN  THE  COURT  OF  APPEALS. 

Shindler  r.  Houston. 

out  the  payment  of  any  part  thereof,  A.  says  "  I  deliver  the 
property  to  you,"  or  "It  is  yours,"  but  there  are  no  acts 
shewing  a  change  of  possession,  or  from  which  the  fact  may 
be  inferred.  B.  refuses  payment.  Is  the  right  of  the  vendor 
to  retain  possession  as  a  lien  for  the  price  gone  ?  Or,  in  the 
event  of  a  subsequent  discovery  of  a  defect  in  the  quantum  or 
quality  of  the  goods,  has  B.  in  the  absence  of  all  acts  on  hia 
part  shewing  an  ultimate  acceptance  of  the  possession  con- 
cluded himself  from  taking  any  objection  ?  I  think  not.  As 
Justice  Cowen  remarks  in  the  case  of  Archer  vs.  Zeh  (5  Hilly 
205).  "  One  object  of  the  statute  was  to  prevent  perjury. 
The  method  taken  was  to  have  something  done ;  not  to  rest 
every  thing  on  mere  oral  agreement."  The  acts  of  the  par- 
ties must  be  of  such  a  character  as  to  unequivocally  place  the 
property  within  the  power,  and  under  the  exclusive  dominion 
of  the  buyer.  This  is  the  doctrine  of  those  cases  that  have 
carried  the  principle  of  constructive  delivery  to  the  utmost 
limit.  Thus,  in  Searles  vs.  Keeves  (2  Esp.  R.  598)  a  case 
which  arose  at  a  period  when  the  English  Courts  were  more  in- 
clined than  recently  to  allow  of  a  constructive  delivery  and  ac- 
ceptance, where  a  written  order  was  given  by  the  seller  of  goods 
to  the  buyer,  directing  the  person  in  whose  care  the  goods 
were  to  deliver  them,  which  order  was  presented  by  the  buyer, 
it  was  held  that  there  was  a  sufficient  delivery  within  the 
statute.  So,  also,  in  Hollinysivortk  vs.  Napier  (3  Caines  R. 
182)  where  the  vendor  delivered  to  his  vendee  a  bill  of  parcels 
for  goods  lying  in  a  public  store,  together  with  an  order  on 
the  store  keeper  for  their  delivery,  and  the  vendee,  upon  de- 
livering the  order  demanded  the  goods,  which  were  turned  out 
to  him,  and  he  paid  the  amount  of  the  storage,  marked  the 
bales  with  his  initials,  and  returned  them  to  the  custody  of 
the  store  keeper,  it  was  held  that  the  statute  was  satisfied. 
But  in  cases  like  these,  it  would  seem  now  to  be  necessary, 
that  the  party  having  the  custody  of  the  goods,  and  Avho  is 
the  agent  of  the  vendor,  should  recognize  the  order  given  to 
the  purchaser,  and  assent  to  retain  the  goo'ls  for  him.  A  de- 
livery to  the  vendee  of  the  kev  of  the  warehouse  in  which  the 


NEW-YORK,  APRIL,  1848.  071 


Shindler  v.  Houston. 


goods  are  lodged,  or  other  indicia  of  property,  where  goods 
are  ponderous  and  incapable  of  being  handed  over  from  one 
to  another,  was  said  by  Lord  Kenyon,  in  Chaplin  vs.  Rogers 
(1  East  194)  to  be  tantamount  to  an  actual  delivery.  In 
Dodsley  vs.  Varley  (12  Adol.  $•  Ellis,  632)  which  was  an  ac- 
tion of  assumpsit  for  wool  bargained  and  sold,  the  Court 
said,  "  We  think  that  upon  the  evidence,  the  place  to  which 
the  wool  was  removed  may  be  considered  as  the  defendant's 
warehouse,  and  that  he  was  in  actual  possession  of  it  as  soon 
as  it  was  weighed  and  packed."  In  these  cases,  and  in  a 
large  number  of  others  that  might  be  cited,  the  circumstances 
Here  unequivocal  to  shew,  not  merely  a  delivery  to  and  ac- 
ceptance of  the  property  in  the  goods,  but,  what  is  always 
essential,  a  complete  acceptance  of  the  possession,  by  the 
buyer.  The  facts  were  more  or  less  strong  in  the  several 
cases,  but  the  acts  of  the  parties  can  scarcely  be  reconciled 
with  any  other  presumption. 

On  the  other  hand,  where  the  acts  of  the  buyer  are  equiv- 
ocal, and  do  not  lead  irresistibly  to  the  conclusion  that  there 
has  been  a  transfer  and  acceptance  of  the  possession,  the  cases 
qualify  the  inference  to  be  drawn  from  them,  and  hold  the 
contract  to  be  within  the  statute.  In  Baldy  vs.  Parker,  (2 
B.  and  0.  37)  A.  purchased  of  B.,  a  trader,  several  articles, 
amounting  in  the  whole  to  <£70.  A.  marked  with  a  pencil 
some  of  the  articles,  saw  others  marked,  and  helped  to  cut  off 
others.  He  then  requested  that  a  bill  of  the  goods  might  be 
sent  to  him,  which  was  done,  together  with  the  goods,  but  he 
declined  to  accept  them.  It  was  held  that  there  was  no  de- 
livery and  acceptance  to  take  the  case  out  of  the  statute  ;  and 
Lord  C.  J.  Abbott,  in  speaking  of  the  exception  in  the  statute, 
justly  remarked  that,  "  It  would  be  difficult  to  find  words 
more  distinctly  denoting  an  actual  transfer  of  the  article  from 
the  seller,  and  an  actual  taking  possession  of  it  by  the  buyer." 
In  Garter  vs.  Touissant,  (5  B.  and  Aid.  855,)  the  circum- 
stances were,  that  a  horse  was  sold  by  verbal  contract,  but  no 
time  fixed  for  the  payment  of  the  price.  The  horse  was  to 
remain  with  the  vendor  for  twenty  days,  without  charge  to  the 


272  CASES  IN  THE  COURT  OF  APPEALS. 


ShiiiJler  /•.  Houston. 


vendee.  At  the  expiration  of  that  time  he  was  sent  tc  grass 
by  order  of  the  vendee,  and  entered  as  one  of  the  vendor's 
horses.  The  Court  held  that  there  was  no  acceptance  of  the 
horse  by  the  vendee  within  the  meaning  of  the  statute.  In 
Tempest  vs.  Fitzgerald,  (3  Barn,  and  Aid.  680,)  A.  agreed  to 
purchase  a  horse  from  B.  for  cash,  and  take  him  away  within 
a  certain  time.  About  the  expiration  of  that  time  A  rode  the 
horse,  and  gave  directions  as  to  his  treatment,  &c.,  but  request- 
ed that  he  might  remain  in  the  possession  of  B  for  a  further 
time,  at  the  expiration  of  which  time  he  promised  to  take  and 
pay  for  the  horse,  to  which  B.  assented.  The  horse  died  be- 
fore A.  paid  the  price  or  took  it  away.  It  was  held  that  there 
was  no  sufficient  acceptance  of  the  horse  to  render  the  vendee 
liable  for  the  price.  In  Howe  vs.  Palmer,  (3  B.  and  Al.  321,) 
a  vendee  publicly  agreed  at  a  public  market,  with  the  agent 
of  the  vendor,  to  purchase  twelve  bushels  of  tares,  (then  io 
the  vendor's  possession  constituting  part  of  a  larger  quantity 
in  bulk,)  to  remain  in  the  vendor's  possession  until  called  for. 
The  agent,  on  his  return  home,  measured  and  set  apart  the 
twelve  bushels.  It  was  held  that  in  this  case  there  had  been 
no  acceptance,  and  the  action  would  not  lie.  In  Kent  vs. 
HusTcisson,  (3  B.  and  P.  233,)  A.  verbally  ordered  from  B.  a 
bale  of  sponge,  which  was  sent.  The  bale  was  opened  and 
examined,  and  the  sponge  returned  by  B.,  who  at  the  same 
time  wrote  a  letter  to  A.,  stating  that  he  disapproved  thereof. 
It  was  held  that  B.  had  not  accepted  the  goods.  In  Proctor 
vs.  Jones,  (2  Car.  and  P.  532,)  it  was  said  that  the  marking 
of  casks  of  wine,  sold  by  parol,  and  lying  at  the  London 
'locks,  with  the  initials  of  the  purchaser,  at  his  request  and  in 
his  presence,  was  not  a  sufficient  acceptance  within  the  statute, 
at  least  if  the  time  of  payment  had  not,  when  the  casks  were 
so  marked,  been  fixed.  In  Bailey  vs.  Ogdcn,  (3  John  R.  399,) 
in  agreement  with  the  vendor,  on  a  parol  contract  for  the  sale 
of  goods,  about  the  storage  of  the  goods,  and  the  delivery  by 
him  of  the  export  entry  to  the  agent  of  the  vendor,  were  held 
not  to  be  sufficiently  certain  to  amount  to  a  constructive  de- 
livery, or  to  afford  an  indicium  of  ownership.  Other  com- 


NEW-YORK,  APRIL,  1848.  273 

Shiadler  v.  Houston. 

paratively  recent  English  and  American  cases  might  be  cited 
shewing,  as  has  been  said  by  Mr.  Justice  Coleridge,  that  "  the 
tenor  of  modern  decisions  is  to  give  to  the  words  of  the  statute 
their  fullest  effect,  and  not  to  allow  (so  far  as  it  is  possible)  of 
any  constructive  deliveries  and  acceptances." 

I  think  I  may  affirm  with  safety  that  the  doctrine  is  now 
clearly  settled,  that  there  must  not  only  be  a  delivery  by  the 
seller,  but  an  ultimate  acceptance  of  the  possession  of  the 
goods  by  the  buyer,  and  that  this  delivery  and  acceptance  can 
only  be  evinced  by  unequivocal  acts  independent  of  the  proof 
of  the  contract.  But  if  the  principles  to  be  deduced  from 
the  recent  decisions  were  otherwise,  I  should  not  be  disposed, 
in  the  face  of  the  plain  and  obvious  meaning  of  the  statute, 
to  follow  them.  The  statute  of  frauds  of  29  Car.  2,  (and  it 
is  in  substance  re-enacted  in  this  State,)  was  justly  pronounced, 
nearly  half  a  century  since,  by  an  eminent  British  Judge, 
"one  of  the  wisest  laws  in  the  statute  book."  Its  provisions 
apply  with  singular  wisdom  and  beneficence,  "  to  the  daily  con- 
tracts and  practical  affairs  of  mankind,"  relieving  them  of 
vagueness  and  uncertainty,  and  checking,  to  some  extent,  "the 
restless  and  reckless  spirit  of  litigation."  Whilst  this  meri- 
torious law  is  in  the  statute  book,  it  is  our  business  to  enforce 
it  in  good  faith,  and  according  to  its  plain  letter  and  spirit, 
without  studying  to  fritter  away  its  vitality  in  the  attempt  to 
uphold  contracts  which  by  its  provisions  are  clearly  void. 

I  am  of  the  opinion  that  the  judgment  of  the  Supreme 
Court  should  be  reversed. 

RUGGLES,  JONES,  and  JOHNSON,  Js.,  concurred. 

JEWETT,  Cn.  J.,  and  GRAY,  J.,  delivered  opinions  in  favor 
of  affirming  the  judgment. 

35  Judgment  reversed. 


CASKS  IN  THK  COURT  OF  APPEALS. 
Vilas  &  Bacon  v.  Jones  &  Piercy. 


274 

s 

HA    759 

10 

•196 

13 

'360 

e33 

8  36 

J33 

1  38 

J33 

•  39 

39 

'332 

a49 

4377 

64 

4247 

70 

»  64 

e91 

•529 

7 

Tr      160 

169  »86.r> 


VILAS  &  BACON,  Appellants,  vs.  JONES  &  PIERCY,  Respondents. 

The  complainants  were  sureties  for  C.  upon  a  note  given  to  J.  for  a  usurious  loan 
of  money.  An  action  at  law  was  brought  upon  the  note  against  the  complain- 
ants, and  C.  in  the  name  of  P.,  as  endorsee.  The  complainants  pleaded  the 
general  issue,  and  gave  notice  of  the  defence  of  usury,  but  did  not  verify  the 
notice  as  required  by  the  usury  act  of  1837,  so  as  to  entitle  them  to  examine 
the  plaintiff  a*  a  witness.  On  the  trial,  they  called  as  a  witness,  J.,  the  payee 
of  the  note,  who  stated,  on  his  voire  dire,  that  he  was  the  owner  of  the  note  and 
the  plaintiff  in  interest,  and  objected  to  testifying  in  the  cause,  and  his  objection 
was  sustained  by  the  Court.  A  verdict  was  taken  for  the  amount  equitably  due 
on  the  note,  and  judgment  was  perfected  against  the  complainants  and  C.;  Jield. 
that  a  bill  filed  by  the  complainants,  after  judgment  at  law,  for  the  purpose 
of  obtaining  the  testimony  of  C.,  and  for  relief  against  the  judgment  on  the 
ground  of  usury,  could  not  be  sustained. 

Held  farther,  that  aAer  judgment  at  law,  the  bill  could  not  be  sustained  on  the 
ground  that  the  complainants,  as  sureties,  were  discharged  by  reason  of  the 
holder  of  the  note  having  extended  the  time  of  payment  to  the  principal  debtor 
in  consideration  of  a  usurious  premium  paid  by  him  in  advance,  it  not  being 
shewn  that  the  complainants  were  prevented  from  setting  up  this  defence  in 
the  action  at  law,  by  any  fraud  or  accident,  or  by  the  act  of  the  opposite  party. 

And  per  BKOMSON,  J.  and  JEWETT,  C.  J.,  an  agreement  made  by  a  creditor  with 
the  principal  debtor,  to  forbear  the  payment  of  the  debt  in  consideration  of  • 
usurious  premium  paid  for  such  forbearance,  is  void,  and  therefore  cannot  ope- 
rate to  discharge  the  sureties. 

Whether  a  mere  surety  is  a  borrower,  within  the  meaning  of  the  usury  act  of  1837 
(Laws  of  1 837,  p.  4S7,  $  4,)  quere. 

Appeal  from  Chancery.  The  appellants,  complainants  in 
the  Court  below,  filed  their  bill  in  the  Court  of  Chancery 
against  the  respondents,  in  which  the  case  was  stated  in  sub- 
stance as  follows :  In  April,  1839,  Harvey  Church  borrowed 
of  the  defendant,  Jones,  $200  for  six  months,  and  was  to  pay 
for  the  use  thereof  at  the  rate  of  ten  per  cent,  per  annum. 
Church  and  the  complainants,  as  his  sureties,  thereupon  gave 
their  joint  and  several  note  to  Jones,  at  six  months,  for  $210, 
being  the  sum  loaned  and  the  interest  added  thereto,  including 
three  per  cent,  for  the  usurious  premium.  At  the  end  of  the 
six  months  it  was  agreed,  between  Church  and  Jones,  that  the 
debt  should  be  forborne  for  aix  months  longer  at  the  same  rate 
of  interest,  which  was  then  paid  in  advance  by  Church.  One 


NEW-YORK,  APRIL,  1848.  275 

Vilas  &  Bacon  v.  Jones  &  Piercy. 


or  more  other  agreements  to  extend  the  time  of  payment  were 
made  at  the  same  usurious  rate  of  interest,  which  was  also 
paid  in  advance.  The  bill  insisted  that  the  note  was  void  for 
usury,  also  that  the  complainants,  as  sureties,  were  discharged 
from  liability  by  reason  of  the  time  of  payment  being  extend- 
ed to  Church,  the  principal  in  the  manner  above  stated.  In 
April,  1842,  a  suit  at  law  was  commenced  on  the  note  against 
Church  and  the  complainants,  in  the  najne  of  the  defendant, 
Piercy,  as  endorsee  of  the  note.  The  complainants  pleaded 
to  the  suit  the  general  issue,  and  gave  notice  of  their  defences 
above  mentioned ;  but  it  did  not  appear  that  the  notice  was 
verified  by  affidavit.  The  suit  was  brought  to  trial  in  Ma.y, 
1842,  and  the  complainants  procured  said  Jones  to  attend  as 
a  witness,  expecting,  as  the  bill  averred,  to  prove  the  facts 
above  stated  by  him.  But  Jones,  on  being  sworn  as  a  wit- 
ness, stated  on  his  voire  dire,  that  he  was  the  owner  of  the 
note,  and  that  the  suit  was  brought  for  his  benefit,  and  he 
thereupon  objected  to  testifying  in  the  cause.  The  Court  sus- 
tained his  objection.  Previous  to  the  trial  of  the  cause,  Jones 
had  been  applied  to  by  the  counsel  of  the  complainants,  to 
learn  who  was  the  owner  of  the  note,  and  Jones  stated  that 
he  had  sold  the  note  to  Piercy,  and  that  Piercy  was  the  owner, 
^he  bill  however  did  not  shew  that  this  false  information  was 
the  reason  why  the  complainants  did  not  verify  the  notice  an- 
nexed to  their  plea,  so  as  to  enable  them  to  call  Jones  as  a 
witness  to  prove  the  usury,  under  the  act  of  1837,  or  that 
they  had  been  in  any  wise  misled  thereby. 

The  bill  also  alleged,  that  the  facts  on  which  the  defence 
in  the  suit  at  law  rested,  were  known  only  to  Church  and  to 
Jones ;  that  Church,  being  a  co-defendant  in  the  suit,  and 
Jones,  being  excused  from  testifying  as  above  stated,  the  com- 
plainants were  unable  to  establish  their  defence,  and  a  verdict 
was  taken  against  them  for  $197,34,  the  amount  claimed  to 
be  due  on  the  note,  for  which  amount  and  costs  of  suit,  judg- 
ment was  perfected  against  them  and  Church ;  that  Church 
suffered  judgment  by  default,  and  that  he  also  refused  to  join 
in  the  bill  of  complaint ;  that  said  Church  had  instituted  pro- 


276  CASES  IN  THE  COURT  OF  APPEALS 


Vilas  &  Bacon  v.  Jones  &  Piercy. 


ceedings  to  be  discharged  as  a  bankrupt  under  the  act  of 
Congress,  passed  August  19,  1841 ;  that  he  was  duly  declar- 
ed a  bankrupt  on  the  16th  of  May,  1842,  and  (as  the  com- 
plainants were  informed  and  believed)  that  he  would  be  enti- 
tled to  his  discharge,  and  would  receive  the  same  before  an 
order  to  take  proofs  could  be  entered  in  this  cause,  so  that  the 
complainants  could  have  the  benefit  of  his  testimony  to  es- 
tablish the  matters  of  defence  above  set  forth.  The  bill  also 
alledged  that  the  complainants  had  released  Church  from  all 
liability  over  to  them,  in  consequence  of  their  signing  the  note 
as  his  sureties.  The  prayer  of  the  bill  was  for  relief  against 
the  judgment  by  injunction  to  restrain  execution  and  all  other 
proceedings  for  the  collection  of  the  same  from  the  complain- 
ants, for  answer  without  oath,  &c. 

The  respondents  severally  demurred  to  the  bill  for  want  of 
equity.  The  cause  was  referred  for  hearing  to  the  Assistant 
Vice  Chancellor  of  the  First  Circuit,  who  allowed  the  demur- 
rers, and  dismissed  the  bill.  The  Chancellor  on  appeal  af- 
firmed the  order. 

S.  Stevens,  for  appellants.  The  complainants  are  entitled 
to  relief  on  the  ground  of  usury.  They  are  to  be  deemed 
borrowers  within  the  equity  of  the  act  of  1837,  so  far  as  re- 
gards the  remedy  given  by  that  act.  (Laws  of  1837,  p.  487  ; 
Perine  et.  al.  vs.  Striker,  7  Paige  598.)  This  defence  was 
not  available  in  the  suit  at  law.  Church,  being  a  co-defend- 
ant in  that  suit,  could  not  be  examined  as  a  witness.  Jones, 
the  payee  of  the  note,  the  only  other  person  to  whom  the 
facts  were  known,  declined  to  testify,  and  his  objection  was 
sustained  by  the  Court.  (Cook  vs.  Spaulding,  1  Hill  580.) 
This  presents  a  case  upon  which  a  Court  of  Equity  will  relieve 
after  judgment.  (Norton  vs.  Woods,  5  Paige  249  ;  Morse  vs. 
Hovey,  1  Barbour  Ch.  Rep.  404.) 

Church  was  not  a  necessary  party  to  the  bill.  After  suffer- 
ing judgment  at  law,  by  default  he  could  have  no  claim  to  re- 
lief in  equity ;  nor  could  any  decree  to  be  pronounced  in  this 


NEW- YORK,  APRIL,  1848.  277 

Vilas  &  Bacon  v.  Jones  &  Piercy. 


cause  affect  him  in  any  way.     (Story  JEq.  PL  §§  231.  443, 
445.) 

The  extension  of  the  time  of  payment  given  by  Jones,  the 
creditor,  to  Church  the  principal  debtor,  without  the  consent 
of  the  complainants,  who  were  mere  sureties,  discharged  them. 
This  defence  is  personal  to  themselves,  and  entitles  them  to 
the  relief  prayed  by  the  bill.  (Rathbone  vs.  Warren,  10 
Johns.  587 ;  King  vs.  Baldwin,  17  do.  384 ;  Miller  vs.  Me  Can, 
7  Paige  451 ;  Surge,  on  Suretyship,  197,  211.) 

James  Edwards,  for  the  respondents. 

I.  The  appellants  having  suffered  judgment  at  law  to  pass 
against  them  on  a  trial  upon  matters  which,  if  proved,  con- 
stituted a  defence  at  law,  and  of  which  they  were  fully  cog- 
nizant before  the  trial,  cannot  be  relieved  from  such  judgment 
in  equity.     (Simpson  vs.  Hart,  4  Johns.  Oh.  R.  91 ;   Q-elston 
£  Schenck  vs.  Hoyt,  1  Johns.  Oh.  R.  543  ;  Barker  vs.  Elkins 
$  Simpson,  1  Johns.  Oh.  R.  465 ;  Norton  vs.  Woods,  5  Paige 
249  ;  Bates  vs.  Bagley,  1  Breeses  R.  60 ;   Gown  vs.  Price, 
1  Bibb's  R.  173 ;  Penny  vs.  Martin,  4  Johns.  Oh.  R.  566 ;. 
Northrup  and  al.  vs.  Survivor  of  Lane  and  al.  3d  Dessau- 
sure  s  Repts.  324 ;  Bateman  vs.  Wilson,  1  Sch.  and  Lefroy 
R.  201-4  ;    Williams  vs.  Lee,  M  Atkins'  R.  223  ;   G-reen  vs. 
Dodge  and  al.  6  Hammond  R.  80  ;   Thompson  vs.  Berry,  and 
al.  M  J.   Ch.  R.  395 ;   Thompson  vs.  Berry,  17  J.  R.  446, 
on  appeal;  Duncan  vs.  Lyon,  3  J.  Ch.  R.  351 ;   Campbell  vs. 
Morrison,  7  Paige  R.  157  ;  Me  Vicker  vs.  Woolcott,  4  J.  R. 
510 ;  Cowen  and  Hill's  Notes,  949,  950.) 

II.  The  appellants  coming  into  this  Court  to  set  up  a  de- 
fence which  they  might  have  interposed  at  law,  must  do  equity 
before  asking  it,  and  as  the  verdict  was  for  no  more  than  the 
original  loan  with  the  lawful  interest  on  it,  after  deducting  the 
payments,  equity  will  not  relieve  them  therefrom  on  the  ground 
of  usury. 

III.  If  the  Court  erred  in  excusing  Jones  from  testifying, 
the  remedy  was  by  a  bill  of  exceptions,  and  not  by  a  bill  in 


278  CASES  IN  THE  COURT  OF  APPEALS. 


Vilas  &  Bacon  v.  Jones  &  Piercy. 


equity.     (Henry  and  Pierce  vs.  TAc  Bank  of  Salina,  5 
523  ;  Stevens  vs.  TFMe,  5  Hill  548.) 

BRONSON,  J.  Harvey  Church  as  principal,  and  the  com- 
plainants as  his  sureties,  made  their  joint  and  several  promis- 
sory note  for  two  hundred  and  ten  dollars,  payable  to  Jones, 
who  endorsed  it  to  Piercy.  After  Piercy  had  sued  and  reco- 
vered judgment  on  the  note  at  law,  against  all  of  the  makers, 
the  complainants  filed  their  bill  in  the  Court  of  Chancery  to 
be  relieved  against  the  judgment,  on  the  ground  that  the  note 
was  void  for  usury ;  but  they  neither  paid  nor  offered  to  pay 
the  money  actually  loaned,  nor  the  legal  interest  thereon. 
Unless  the  case  has  been  provided  for  by  our  recent  usury 
statutes,  it  is  entirely  clear  that  such  a  bill  cannot  be  main- 
tained. It  is  a  fundamental  principle  of  the  Court  of  Chan- 
cery that  he  who  asks  equity  must  do  equity  ;  and  without  an 
express  command  of  the  Legislature,  the  Court  of  Chancery 
never  does  so  unjust  a  thing  as  to  entertain  a  bill  to  annul  a 
contract  on  the  ground  of  usury,  without  requiring  the  debtor 
to  do  equity  on  his  part.  He  must  return,  or  offer  to  return, 
what  he  actually  received,  with  interest.  The  principle  is  a 
familiar  one,  and  I  need  not  cite  authorities  to  support  it. 

Before  examining  the  statute  it  is  proper  to  notice,  that  the 
bill  states,  in  express  terms,  that  the  agreement  for  the  loan 
which  the  note  was  given  to  secure,  was  made  between  Jones 
and  Church  ;  and  that  the  loan  was  actually  made  by  Jones  to 
Church.  And  it  is  not  stated  that  the  complainants  had  any 
thing  to  do  cither  with  the  agreement  or  the  loan.  They  only 
became  sureties  for  the  re-payment  of  the  money. 

Let  us  now  see  what  the  Legislature  has  done.  It  has  set 
aside  the  rule  of  equity  which  has  been  mentioned,  in  favor 
of  the  "  borrower"  of  the  money,  but  not  in  favor  of  any  one 
else.  (1  It.  S.  772,  §  8,  Stat.  1837,  p.  487,  §  4.)  It  will 
only  be  necessary  to  notice  the  last  act,  as  that  goes  further 
than  any  usury  law  which  preceded  it.  The  4th  section  is  aa 
follows  :  "  Whenever  any  borroiverof  money,  goods,  or  things 
in  action,  shall  file  a  bill  in  Chancery  for  relief  or  discovery, 


NEW- YORK,  APRIL,  1848.  279 


Vilas  &  Bacon  v.  Jones  &  Piercy. 


or  both,  against  any  violation  '  of  the  usury  laws,'  it  shall  not 
be  necessary  for  him  to  pay,  or  offer  to  pay,  any  interest  or 
principal  on  the  sum  or  thing  loaned."  The  word  "  borrow- 
er" is  again  used  near  the  close  of  the  section,  without  any- 
thing to  enlarge  its  ordinary  signification.  There  is,  I  think, 
no  established  rule  of  interpretation  which  will  so  enlarge  this 
provision  as  to  make  it  include  the  sureties  of  the  borrower. 
It  cannot  be  carried  so  far  without  indulging  a  latitude  of  con- 
struction which  would  amount  to  a  new  enactment.  I  am 
aware  that  the  Chancellor  and  the  late  Mr.  Justice  Suther- 
land, have  respectively  intimated  an  opinion  that  the  surety 
is  a  borrower  within  the  meaning  of  the  staute.  (Perrine  vs. 
Striker,  7  Paige  602  ;  Livingston  vs.  Harris,  11  Wend.  336.) 
But  the  point  was  not  decided  in  either  case.  Both  turned 
apon  other  grounds ;  and  in  the  case  before  the  Chancellor, 
the  bill  was  filed  by  the  borrower  in  conjunction  with  the 
surety.  It  may  be  true,  as  was  remarked  by  Mr.  Justice 
Sutherland,  that  there  is  no  reason,  in  the.  nature  of  the  case, 
why  the  surety  should  not  have  all  the  remedies  and  means 
of  defence  which  are  given  to  the  principal  debtor.  But  that 
does  not  settle  the  point.  The  question  still  remains,  whether 
the  Legislature  has  given  the  same  remedies  and  means  of 
defence  to  both.  I  think  not.  The  agreement  to  borrow, 
and  the  security  for  the  loan,  are  two  things,  and  the  borrower 
and  his  surety  are  two  persons.  The  Legislature  has  given  a 
new  and  peculiar  remedy  to  one,  and  only  one,  of  those  two 
persons ;  and  I  see  no  principle  upon  which  tha  Courts  can  so 
extend  the  enactment  as  to  make  it  include  both.  It  is  quite 
possible  that  the  Legislature,  in  its  zeal  to  regulate  this  branch 
of  trade,  and  make  money  cheap  when  it  is  scarce,  as  well  as 
when  it  is  plenty,  would  have  given  this  new  remedy  to  the 
surety  as  well  as  the  borrower,  if  the  thing  had  been  thought 
of.  But  if  it  is  a  casus  omissus  in  the  statute,  it  is  for  the 
Legislature,  and  not  the  Courts,  to  supply  the  defect.  (Jones 
vs.  Smart,  1  T.  R.  52.)  To  bring  a  case  within  the  statute, 
it  must  not  only  be  within  the  mischief  contemplated  by  the 
Legislature,  but  also  within  the  fair  import  of  the  words  which 


280  CASES  IN  THE  COURT  OF  APPEALS. 


Vilas  dc  Bacon  v.  Jones  &  Piercy. 


the  Legislature  has  used.  (Brandling  vs.  Barrington,  G  T 
R.  469 ;  Dwar.  Stat.  711.)  I  had  occasion  to  remark,  in 
Waller  vs.  Harris,  (20  Wend.  561,)  that  the  current  of  au- 
thority at  the  present  day  was  in  favor  of  reading  statutes 
according  to  the  natural  and  most  obvious  import  of  their  lan- 
guage, without  resorting  to  subtle  or  forced  constructions  for 
the  purpose  of  either  limiting  or  extending  their  operation. 
If  we  read  the  statute  under  consideration,  in  that  way ,  in- 
deed, if  we  do  not  take  a  most  unwarrantable  license  with  the 
language  which  the  Legislature  has  used,  the  word  "  borrow- 
er" cannot  be  made  to  include  the  borrower,  and  his  surety 
also.  It  is  true  that  a  majority  of  the  Court  of  Errors  gave 
a  pretty  large  construction  to  the  word  "  plaintiff,"  in  another 
section  of  this  statute.  (Henry  vs.  Bank  of  Salina,  5  Hill 
.523.)  But  there  was  some  color  for  that  decision ;  while,  in 
my  judgment,  there  is  no  solid  ground  for  saying,  that  the 
word  "borrower"  includes  one  who  did  not  borrow,  and  who 
had  no  other  connection  with  the  transaction  than  that  of  be- 
coming a  surety  for  the  man  who  did  borrow. 

I  have  thus  far  considered  the  case  as  though  the  statute 
was  remedial  only,  and  ought  therefore  to  have  a  liberal  con- 
struction. But  if  the  statute  is  remedial,  it  is  also  penal.  It 
not  only  creates  a  forfeiture  of  the  debt,  but  it  punishes  the 
lender  as  a  criminal.  The  very  section  under  consideration 
was  made  for  the  purpose  of  bringing  about  a  forfeiture  of 
the  money  actually  loaned.  All  the  books  agree  that  penal 
statutes  are  to  be  construed  strictly ;  and  I  am  not  aware  of 
any  principle  upon  which  such  a  usury  law  as  we  have  can  bo 
made  an  exception  to  the  general  rule.  There  is,  however, 
no  occasion  for  applying  a  strict  construction  in  this  case. 

The  conclusion  from  what  has  been  said  may  be  stated  in 
few  words.  Church,  who  borrowed  the  money  refused  to  join 
with  the  complainants  in  filing  the  bill;  and  he  is  not  a  party 
to  it  in  any  form.  As  the  bill  was  not  filed  by  the  "borrow- 
er," the  case  does  not  come  within  the  provision  of  the  statute 
which  relieves  him  from  the  necessity  of  paying,  or  offering  to 
pay,  the  money  actually  loaned.  The  complainants  are  enti- 


NEW-YORK,  APRIL,  1848.  281 


Vilas  &  Bacon  v .  Jones  &  Piercy. 


tied  to  no  such  favor,  because  the  statute  does  not  give  it  to 
them ;  and  when  they  go  into  Chancery  they  are  met  by  that 
cardinal  principle  of  the  Court,  that  he  who  asks  equity  must 
do  equity  ;  and  as  they  had  not  paid,  nor  offered  to  repay  the 
the  money  loaned,  with  interest,  the  bill  was  properly  dismis- 
sed, so  far  as  relates  to  the  question  of  usury. 

2.  There  is  a  further  reason  why  this  case  does  not  come 
within  the  statute,  and  a  reason  which  would  exist  though 
Church  had  joined  with  the  complainants  in  filing  the  bill. 
This  statute,  like  all  other  laws  which  provide  a  remedy  or 
defence,  must  be  understood  as  applying  only  to  a  remedy  or 
defence  which  is  set  up  or  pursued  before  the  matter  has  pass- 
ed into  judgment.  It  would  be  strange  indeed  if  a  party 
could  wait  till  after  judgment,  and  then  insist  on  a  remedy  or 
defence  which  might  have  been  available  had  it  been  put  for- 
ward at  the  proper  time.  When,  therefore,  the  borrower  does 
not  move  until  after  a  judgment  against  him  at  law,  if  he  can 
then  go  into  Chancery  at  all,  he  cannot  do  it  as  a  matter  of  right 
under  this  statute,  but  only  as  a  matter  of  equity  under  the 
general  powers  of  the  Court :  and  when  he  cannot  come  with 
the  statute  in  his  hands,  the  answer  of  the  Court  is,  you  must 
do  equity,  or  offer  to  do  it,  before  you  can  be  heard. 

There  are  then  two  reasons  why  this  case  does  not  come 
within  the  statute  :  (1.)  the  bill  was  not  filed  by  the  borrower 
of  the  money  ;  and  (2.)  it  was  not  filed  until  after  a  judgment 
had  been  recovered  on  the  note.  And  as  the  statute  must  bo 
laid  out  of  view,  the  bill  was  properly  dismissed,  because  the 
complainants  did  not  offer  to  return  the  money  actually  loaned, 
with  interest. 

II.  There  is  a  further  difficulty  in  the  way  of  the  complain- 
ants :  they  have  appealed  to  Chancery  after  a  trial  and  judg- 
ment against  them  at  law ;  and  the  bill  shows  no  sufficient 
ground  for  granting  relief.  I  am  still  speaking  of  that  branch 
of  the  case  which  rests  upon  the  charge  of  usury. 

When  a  party  goes  into  Chancery  after  a  trial  at  law,  he 
must  be  able  to  impeach  the  justice  and  equity  of  the  verdict ; 

and  i.t  must  be  upon  grounds  which  either  could  not  be  ip.ado 

36 


282  CASES  IN  THE  COURT  OF  APPEALS. 


Vilas  &  Bacon  v.  Jones  &  Piercy. 


available  to  him  at  law,  or  which  he  was  prevented  from  setting 
up  by  fraud,  accident,  or  the  wrongful  act  of  the  other  party, 
without  any  negligence  or  other  fault  on  his  part.  The  cases 
were  cited  at  the  bar  and  I  need  not  repeat  them. 

The  defence  was  available  at  law  ;  and  the  only  difficulty 
which  the  complainants  met  with  there  was,  the  inability  to 
prove  it.  The  bill  states  in  substance,  that  Jones  was  the 
only  witness,  and  the  complainants  expected  to  prove  the  usu- 
ry by  him.  Prior  to  the  trial  their  counsel  applied  to  Jones 
to  learn  who  was  the  owner  of  the  note  ;  and  he  answered,  that 
he  had  sold  the  note  to  Piercy,  the  plaintiff  on  record  in  that 
suit,  and  he  was  the  owner  of  it.  On  the  trial,  the  complain- 
ants called  Jones,  and  he  testified,  that  he  owned  the  note ; 
that  the  suit  was  brought  for  his  benefit,  and  Piercy  had  no 
interest  in  it.  The  Judge  therefore  decided  that  Jones  could 
not  be  required  to  testify,  without  his  consent. 

To  the  case  thus  made  by  the  bill,  there  are  several  deci- 
sive answers. 

1.  If  Jones  told  a  falsehood  in  relation  to  the  ownership  of 
the  note  previous  to  the  trial,  there  is  no  allegation  in  the  bill 
that  the  complainants  were  deceived  or  in  any  way  misled  by 
it,  or  that  they  omitted  to  do  anything  which  would  have  been 
done  had  Jones  spoke  the  truth.     There  is  no  charge  or  state- 
ment in  the  bill  that  the  declaration  of  Jones  had  any  influ- 
ence whatever  upon  their  conduct,  or  that  it  contributed  in  any 
degree  to  the  defeat  which  they  suffered  in  making  out  the 
defence.  We  cannot   see,  from   the  nature  of  the  case,  that 
the  complainants  must  have  been  injured  by  the  falsehood ; 
and  as  they  have  made  no  such  charge,  we  cannot  presume 
that  they  were  injured.     It  would  be  a  new  and  most  danger- 
ous precedent,  to  allow  a  party  to  go  into  Chancery  for  a  new 
trial  because  his  adversary  had  told  a  falsehood,  without  show- 
ing, or  even  alleging,  that  the  falsehood  had  led  to  the  defeat 
in  the  trial  at  law,  or  been  in  any  degree   instrumental  in 
bringing  about  that  result. 

2,  It  may  be  inferred  from  the  bill,  and  such  also  i.s  the 

of  the  counsel,  that  Jones  w;is  excuse- d  from  swear- 


ALBANY,  JANUARY,   1848.  28-3 


Vilas  &  Bacon  v.  Jones  &  Piercy. 


ing  to  the  usury,  on  the  ground  that  he  was  the  plaintiff  in 
interest,  and  not  being  the  plaintiff  on  record,  he  could  not 
be  compelled  to  answer  under  the  2d  section  of  the  usury  act 
of  1887.  That  was  an  erroneous  ruling  of  the  Judge,  according 
to  the  decision  of  the  Court  of  Errors  in  Henry  v.  Sank  of 
Salina,  (5  Hill,  523  ;)  and  the  remedy  of  the  complainants 
was  a  bill  of  exceptions.  This  is  probably  the  first  case  on 
record  where  a  party  who  has  been  defeated  by  an  erroneous 
decision  at  law,  has  resorted  to  a  bill  in  equity,  instead  of  a 
bill  of  exceptions,  to  correct  the  error.  But  if  it  is  not  the 
first,  I  trust  it  will  be  the  last  case  where  such  an  experiment 
•will  be  tried. 

In  Perrine  v.  /Striker,  (7  Paige,  598,)  the  Chancellor  dis- 
missed a  bill  filed  by  the  borrower  and  his  surety,  on  the 
ground  that  they  had  an  adequate  remedy  at  law,  by  examin- 
ing the  plaintiff  to  prove  the  usury,  under  the  second  section 
of  the  act  of  '87.  The  bill  was  filed  before  there  had  been  a 
trial  at  law,  and  in  pursuance  of  the  express  words  of  the  4th 
section  of  the  same  statute.  If  it  was  proper  to  dismiss  the 
bill  in  such  a  case  on  the  ground  that  there  was  an  adequate 
remedy  at  law,  no  one  can  doubt  that  it  was  proper  to  dismiss 
this  bill  for  the  same  reason. 

3.  The  Court  of  Chancery  will  not  aid  a  party  after  he  has 
had  a  trial  at  law,  unless  he  impeach  the  justice  and  equity 
of  the  verdict.  Now  in  this  case,  instead  of  taking  a  verdict 
for  the  amount  of  the  note  with  interest,  which  at  the  time  of 
the  trial  was  about  $245,  the  plaintiffs  took  a  verdict  for  on- 
ly $197,34  :  and  it  was  stated  on  the  argument  by  the  defend- 
ant's counsel,  and  admitted  by  the  counsel  for  the  complain- 
ants, that  this  was  no  more  than  the  sum  actually  loaned  with 
legal  interest,  after  deducting  all  payments,  according  to  the 
statement  of  those  matters  made  in  the  bill.  This  then  is  a 
just  and  equitable  verdict ;  and  yet  the  complainants  have 
gone  into  Chancery  to  get  rid  of  it,  and  bring  about  a  forfeit- 
ure of  the  whole  debt.  No  precedent  for  such  a  bill  was  men- 
tioned at  the  bar,  and  I  presume  none  can  be  found. 

III.  Another  objection  to  the  bill  is  the  want  of  proper 


284  CASES  IN  THE  COURT  OF  APPEALS. 


Vilns  &  Bacon  v.  Jones  &  Piercy. 


parties.  Church  and  the  complainants  were  joint  makers  of 
the  note,  and  they  were  all  sued  together.  The  defence  of 
usury  is  common  alike  to  all :  it  is  as  good  a  defence  for 
Church,  as  it  is  for  the  complainants ;  and  yet  Church  has 
not  been  made  a  party  to  the  bill.  The  whole  controversy 
cannot  be  settled  in  this  suit ;  for  another  bill  may  be  filed 
by  Church,  and  the  defendants  be  thus  subjected  to  a  double 
litigation.  True,  the  complainants  say,  that  Church  suffered 
judgment  to  pass  against  him  by  default ;  and  that  he  refused 
to  put  in  a  plea,  or  to  join  with  the  complainants  in  filing  this 
bill.  But  Church  has  a  right  to  speak  for  himself ;  and  until 
he  has  been  heard,  cither  as  complainant  or  defendant,  he 
cannot  be  concluded  by  this  litigation.  In  Miller  vs.  McCan 
(7  Paige  457,)  where  the  surety  was  allowed  to  maintain  a 
bill  against  the  creditor,  without  making  the  principal  debtor 
a  party,  the  equity  on  which  the  bill  was  founded  was  pecu- 
liar to  the  surety,  and  such  as  could  not  under  any  circum- 
stances be  made  available  to  the  principal  debtor.  It  is  not 
so  here ;  and  the  non-joinder  of  Church  is  a  fatal  objection. 
Briggs  vs.  Butler  (9  Paige  226,)  reversing  the  decree  of  the 
V.  C.  of  the  8th  Circuit,  (Clarke  V.  C.  Rep.  517,)  is  a  case 
in  point. 

I  have  now  done  with  that  branch  of  the  case  in  which  the 
complainants  ask  relief  on  the  ground  that  the  note  was  void 
for  usury. 

Second.  The  complainants  set  up  as  another  ground  of 
defence  to  the  note,  that  they  were  sureties  for  Church  ;  and 
that  after  the  debt  became  due,  Jones,  without  their  knowl- 
edge or  consent,  gave  further  day  of  payment  to  the  principal 
debtor. 

1.  The  first  answer  to  this  branch  of  the  case  is,  that  the- 
complainants  have  tried  or  had  the  opportunity  of  trying,  that 
matter  at  law,  where  it  is  as  good  a  defence  as  it  is  in  equity ; 
and  no  sufficient  reason  is  shewn  for  a  subsequent  appeal  to 
the  Court  of  Chancery.  A  portion  of  what  has  been  said  on 
the  same  subject  in  relation  to  the  other  branch  of  the  case,  is 
equally  applicable  here,  and  need  not,  therefore,  be  repeated. 


NEW-YORK,  APRIL,  1848  285 


Vilas  &  Bacon  v.  Jones  &  Piercy. 


But  there  is  something  to  be  added.  It  appears  from  the 
bill,  that  the  complainants  were  apprised  of  the  facts  before 
they  pleaded  at  law,  and  gave  notice  of  this  defence  with  the 
general  issue ;  and  further,  that  they  went  to  trial  with  the 
knowledge  that  no  one  could  prove  the  defence  but  Jones  or 
Church.  As  Church  was  a  party  to  the  record,  the  complain- 
ants knew  that  he  could  not  be  sworn.  They  say  in  the  bill, 
that  they  "expected"  to  establish  the  fact  of  giving  time  by 
the  testimony  of  Jones.  That  is  a  falsehood  in  point  of  law, 
if  it  be  not  also  a  falsehood  in  point  of  fact.  Jones  could  be 
called  in  only  one  of  two  characters — either  under  the  usury 
act,  as  plaintiff  in  interest,  (Henry  v.  Sank  of  Salina,  5  Hill, 
523,)  or  simply  as  a  witness.  He  could  only  be  called  as  the 
plaintiff  in  interest,  "  for  the  purpose  of  proving  the  usury  ;" 
(Stat.  '37,  p.  487,  §  2,)  and  not  for  any  other  purpose  what- 
ever. (Bank  of  Salina  v.  Henry,  2  Denio  155,  affirmed  1  Comst. 
See  ante  83.)  He  could  not  be  called  as  plaintiff,  for  the  pur- 
pose of  making  out  the  defence  of  which  we  are  now  speaking. 
Let  us  now  suppose  him  called  as  a  witness  merely,  having 
no  interest  in  the  event  of  the  suit.  According  to  the  state- 
ments in  the  bill,  the  facts  to  be  proved  by  him  to  make  out 
this  branch  of  the  case  were,  that  he  had  on  several  occasions 
charged  and  received  usury  for  forbearing  and  giving  further 
day  of  payment  on  the  note.  He  must  then  have  been  called 
to  prove  facts  which  would  show  him  guilty  of  a  misdemeanor 
punishable  with  fine  and  imprisonment ;  (Stat.  1837,  p.  487, 
§  65)  and  of  course  he  was  not  obliged  to  answer.  So  far  as 
relates  to  this  branch  of  the  case,  the  objection  which  he  made 
to  giving  evidence,  was  properly  allowed  by  the  Court.  Now 
if  we  assume  in  favor  of  the  complainants,  what  is  not  alleged 
in  the  bill,  that  they  were  misled  by  the  falsehood  imputed  to 
Jones,  and  acted  upon  the  assumption  that  he  had  no  inter- 
est in  the  suit,  and  might  therefore  be  called  like  any  other 
witness,  the  complainants  must  still  fail  in  this  branch  of  their 
case  ;  for  they  either  knew,  or  were  bound  to  know,  that  Jones 
could  not  be  compelled  to  testify  to  the  facts  which  they  pro- 
posed to  prove  by  him.  This  disposes  of  every  shadow  of  ex- 


286  CASES  IN  THE  COURT  OF  APPEALS. 


Vilas  Ac  Bacon  v.  Jones  &  Piercy. 


cuse  set  up  in  the  bill  for  resorting  to  Chancery  for  a  new  trial, 
after  having  had  a  trial  at  law. 

2.  There  is  another  answer  to  this  branch  of  the  case  which 
I  deem  entirely  conclusive.  Merely  giving  further  time  of  pay- 
ment to  the  principal  debtor,  -without  the  consent  of  the  surety, 
is  no  defence  for  the  latter ;  time  must  be  given  in  pursuance 
of  a  valid  contract  for  that  purpose,  which  ties  the  hands  of 
the  creditor,  so  that  he  cannot  sue  if  he  would.  If  the  agree- 
ment be  not  under  seal,  it  must,  like  other  contracts  by  parol, 
appear  to  be  founded  upon  a  sufficient  legal  consideration.  In 
this  case  the  original  note  was  never  given  up ;  Jones  kept  it 
in  his  hands,  and  might  have  brought  a  suit  upon  it  at  any 
time  after  it  fell  due,  unless  he  was  restrained  by  some  bind- 
ing agreement.  Now  each  and  every  extension  of  time  men- 
tioned in  the  bill  was  made  upon  an  usurious  contract,  such  as 
is  expressly  declared  to  be  void  by  statute.  In  every  instance 
Church  agreed  to  pay  more  than  the  legal  rate  of  interest  for 
the  forbearance ;  and  in  most  of  the  cases,  the  payment  was 
actually  made.  It  has  not  been  suggested  that  a  promise  to 
pay  usury  in  future,  an  engagement  that  is  utterly  void,  can 
be  regarded  as  any  consideration  whatever  for  a  promise  by 
the  creditor  to  extend  the  time  of  payment.  And  undoubt- 
edly he  may  sue  the  next  moment.  And  I  am  wholly  unable 
to  see  how  usury,  paid  down,  can  make  the  case  any  better. 
The  contract  for  usury  is  equally  void  whether  the  money  is 
actually  paid  or  only  promised  to  be  paid  at  a  future  day. 
The  statute  has  made  no  distinction  ;  but  on  the  contrary,  has 
declared  void  all  contracts  infected  with  usury.  Though  the 
debtor  parts  with  the  money,  it  still  belongs  to  him  ;  and  he 
may  sue  the  next  moment  and  recover  it  back.  (1  R.  S.  772, 
§  3.)  This  shows  that  there  is  no  force  in  the  suggestion,  that 
although  the  creditor  cannot  legally  receive,  the  debtor  is  not 
forbidden  by  law  to  give  money  at  a  usurious  rate  for  the  for- 
bearance. Although  the  statute  docs  not  in  terms  say  that 
the  debtor  shall  not  give  what  he  pleases  for  the  forbearance, 
it  does  so  in  legal  effect ;  he  is  put  into  the  same  category 
with  infants,  femes  covert,  arid  persons  non  compos  mentis, 


NEW-YORK,  APRIL,  1848.  287 


Vilas  &  Bacon  v .  Jones  &  Piercy. 


and  declared  legally  incompetent  to  make  a  bargain  about 
money  where  more  than  seven  per  cent,  is  demanded.  If  he 
agrees  to  give  more,  the  agreement  is  void  ;  and  though  the 
agreement  be  executed  by  paying  the  money,  it  is  still  void, 
and  the  money  may  be  re-called  at  pleasure.  I  think  it  im- 
possible to  maintain  that  either  the  promise  or  the  payment 
of  usury  is  a  good  consideration  for  a  promise  by  the  creditor 
to  give  time.  It  is  no  consideration  at  all.  The  creditor  gets 
no  benefit,  and  the  debtor  suffers  no  damage. 

This  question  was  not  decided  in  Miller  vs.  Me  Can,  (7  Paige 
451,)  for  there  is  nothing  to  show  that  it  was  so  much  as 
thought  of,  either  by  Court  or  counsel.  I  believe  the  word 
usury  is  not  even  mentioned  in  the  case. 

After  proceeding  thus  far,  tAvo  cases  in  the  Kentucky  Court 
of  Appeals,  touching  this  question,  have  fallen  under  my  ob- 
servation. (Tudor  vs.  Croodhue,  1  B.  Monroe  L.  and  Eq. 
Rep.  322 ;  Kenningham  vs.  Bedford,  id.  325.)  In  the  first 
of  those  cases  it  was  held,  that  an  agreement  by  the  creditor 
to  extend  the  time  for  payment,  on  a  promise  by  the  principal 
debtor  to  pay  an  usurious  rate  of  interest  for  the  forbearance, 
did  not  discharge  the  surety,  for  the  reason  that  as  the  promise 
of  the  debtor  to  pay  usury  was  void,  there  was  no  considera- 
tion for  the  promise  of  the  creditor  to  forbear,  and  conse- 
quently no  binding  contract  for  time.  To  that  doctrine  I  fully 
subscribe.  But  in  the  last  case,  the  usury  was  paid  at  the 
time  the  creditor  promised  to  forbear ;  and  the  Court  held 
that  the  surety  was  discharged ;  that  although  the  contract 
was  void  as  to  the  debtor,  it  was  valid  as  to  the  creditor ;  and 
if  he  should  sue  before  the  expiration  of  the  stipulated  for- 
bearance, the  other  party  might  have  an  action  for  damages. 
It  was  likened  to  a  contract  between  an  adult  and  an  infant, 
where  the  adult  is  bound,  though  the  infant  is  not.  Although 
this  decision  comes  from  a  learned  and  highly  respectable 
Court,  it  has  failed  to  convince  my  understanding.  I  am  still 
unable  to  see  how  payment  of  the  usury  can  make  the  agree- 
ment any  more  binding  than  it  would  be  on  a  promise  to  pay 
in  future.  If  the  Kentucky  statute  is  like  ours,  it  makes  all 


288  CASES  IN  THE  COURT  OF  APPEALS. 

Vilas  ifc  Bacon  r.  Jones  &  Picrey. 

contracts  for  usury  void,  without  any  distinction  between  such 
as  are  executed  in  part,  and  such  as  are  wholly  executory  ;  and 
it  makes  the  contract  void,  not  one  side  of  it  only,  but  the 
whole  contract,  so  that  neither  party  is  bound  by  it.  If  the 
debtor  pays  usury  for  further  time,  it  either  operates  as  a  pay- 
ment of  so  much  money  towards  the  original  debt,  or  else  the 
money  may  be  recovered  back  at  pleasure.  And  in  either 
case,  there  is  no  sufficient  consideration  for  a  promise  of  any 
kind  by  the  creditor.  Payment,  either  in  whole  or  in  part, 
of  a  debt  already  due,  cannot  be  a  good  consideration  for  a 
promise  by  the  creditor ;  for  he  gets  nothing  but  his  own. 
And  if  the  money  paid  still  belongs  to  the  debtor,  and  may 
be  recalled  at  pleasure,  the  creditor  gets  nothing  at  all ;  and 
then  it  seems  quite  clear  that  there  is  no  consideration  to  up- 
hold his  promise.  The  case  put  by  the  Court  of  a  contract 
between  an  adult  and  an  infant,  is  not  entirely  parallel ;  for 
there,  if  the  contract  fails,  it  is  because  one  party  was  not  le- 
gally competent  to  make  it,  and  not  on  account  of  any  vice 
in  the  contract  itself.  But  where  there  is  usury,  the  contract 
is  vicious :  it  is  a  thing  forbidden  by  law.  Again,  very  few 
contracts  made  by  an  infant  are  void ;  for  the  most,  they  are 
only  voidable ;  and  some  of  them  cannot  be  avoided.  But 
contracts  infected  with  usury  are  absolutely  void ;  and  they 
are  all  void,  without  exception, 

If  the  usury  laws  are  carried  out  into  all  their  legitimate 
consequences  when  they  operate  against  the  creditor,  as  I  think 
they  should  be,  there  is  no  good  reason  why  they  should  not 
be  carried  to  the  same  extent  when  they  happen  to  operate  in 
his  favor.  And  as  the  statute  does  not  declare  the  contract 
half  good  and  half  bad,  but  void,  I  think  it  altogether  void. 
Neither  party  is  bound,  for  there  is  no  contract. 

I  am  of  opinion  that  the  decree  of  the  Court  of  Chancery 
should  be  affirmed. 

GARDINER,  J.,  said  he  concurred  in  the  result  of  the  opin- 
ion delivered  by  BROXSON,  J.,  and  also  in  the  opinion  upon  all 
the  points  except  that  which  holds  that  a  surety  is  not  a  bor- 
rower within  the  provisions  of  the  act  of  1837. 


NEW  YORK,  APIRL,  1848.  289 

Vilas  &  Bacon  v.  Jones  &  Piercy. 

JEAVETT,  C.  J.,  delivered  an  opinion  in  favor  of  affirming 
the  decree.  So  far  as  the  bill  sought  relief  on  the  ground  of 
usury,  he  was  of  opinion  that  after  a  trial  at  law  it  was  too 
late,  under  the  circumstances,  for  the  complainants  to  resort 
to  a  Court  of  Equity  to  impeach  the  judgment.  The  bill  did 
not  pretend  that  they  were  in  any  wise  misled  by  .the  false 
statement  of  the  payee  of  the  note,  that  he  had  transferred 
it  to  Piercy  the  plaintiff,  on  the  record  in  the  action  at  law ; 
and  if  they  had  verified  their  notice  of  the  defence  of  usury 
according  to  the  provisions  of  the  act  of  1837,  they  might 
have  called  the  payee,  as  the  plaintiff  in  interest,  and  exam- 
ined him  as  a  witness.  The  bill  states  that  they  expected  to 
prove  the  usury  by  him  on  the  trial,  and  it  may  therefore  be 
presumed  that  the  facts  thus  alleged,  if  true,  might  have  been 
shewn,  but  for  their  own  fault  in  omitting  to  take  the  neces- 
sary steps  to  entitle  themselves  to  the  proof.  As  to  the  second 
ground  of  relief,  he  was  of  opinion  that  the  alleged  agree- 
ments to  forbear  the  payment  of  the  note,  in  consideration  of 
usurious  premiums  paid  for  such  forbearance,  were  wholly 
void  and  therefore  could  not  be  set  up  by  the  sureties  as  a 
ground  of  discharge.  It  is  conceded,  he  said,  that  an  agree- 
ment to  extend  the  time  of  payment,  in  consideration  of  an 
executory  agreement  to  pay  a  usurious  premium,  is  void,  and 
does  not  suspend  the  remedy  of  the  creditor  against  the  prin- 
cipal debtor.  But  the  distinction  between  that  cas3  and  the 
case  where  the  agreement  is  executed  on  the  part  of  the  debtor 
by  the  actual  payment  of  the  usurious  premium,  rests  upon  no 
solid  foundation.  In  either  case  the  statute  declares  the  con- 
tract void,  and  the  debtor  can  recover  back  the  money  so  paid 
by  action. 

Upon  these  grounds  he  was  in  favor  of  affirming  the  decree 
of  the  Chancellor. 

The  other  members  of  the  Court  concurred  in  the  conclu- 
sion that  the  decree  should  be  affirmed. 

37  Decree  affirmed. 


290 


CASES  IN  THK  COU11T  OF  APPEALS. 


Conover  v.  Insurance  Company. 


S 

5 

el? 
43 
100 
100 
138 
143 


290 

HA     604 

"408 
•400 
'272 
4422 
4423i 
'479, 
'436, 


CONOVER  vs.  THE  MUTUAL  INSURANCE  COMPANY  OP  ALBANY. 

A  bill  of  exceptions  v/ill  not  lie  to  review  the  exercise  of  the  discretion  of  a 
Circuit  Judge  on  the  trial  of  a  cause,  in  disregarding  a  yariance  between  the 
declaration  and  the  proof. 

Where  a  policy  of  insurance  prohibited  an  assignment  of  the  interest  of  the  as- 
sured, "unless  by  the  consent  of  the  company  manifested  in  writing,"  and  the 
Secretary,  on  an  application  to  him  at  the  office  of  the  company,  endorsed  upon 
the  policy  and  subscribed  a  consent,  it  seems  that  his  authority  to  do  so,  in  the 
absence  of  evidence  to  the  contrary,  should  be  presumed. 

But  if  it  were  necessary  to  prove  his  authority,  a  formal  resolution  of  the  Board 
of  Directors  need  not  be  shewn.  Evidence  that  the  Secretary,  he  being  the  sole 
agent  of  the  company  in  transacting  business  at  their  office,  has  been  in  the 
uniform  habit  of  giving  such  consent  in  writing,  and  made  regular  entries  of  his 
acts  in  the  books  of  the  company,  without  any  objection  or  repudiation  on 
the  part  of  the  company,  is  enough  at  least  to  carry  the  question  of  authority  to 
the  jury. 

A  mortgage  given  by  the  insured  upon  the  property  covered  by  the  policy,  is  not 
an  alienation  by  sale  or  otherwise,  within  the  meaning  of  the  seventh  section  of 
the  charter.  (J^aws  of  153G, p,  315  and  4,4.) 

And  notwithstanding  such  mortgage,  and  an  assignment  of  the  policy  to  the 
mortgagee,  with  the  consent  of  the  company,  a  suit  upon  the  policy  to  recover 
for  a  loss  must  be  brought  in  the  name  of  the  insured. 

On  error  from  the  Supreme  Court,  where  an  action  was 
brought  by  Conover  against  the  Mutual  Insurance  Company 
of  the  city  and  county  of  Albany,  upon  a  policy  of  insurance. 
On  the  trial,  Conover  had  a  verdict  for  the  amount  of  the  loss 
in  question,  on  which  the  Supreme  Court  rendered  judgment 
in  his  favor.  For  the  facts,  so  far  as  material,  see  the  report 
of  the  case  in  the  Supreme  Court,  (3  Denio  254,)  and  the 
opinion  of  JOHNSON,  J. 

R.  W.  Peckham,  for  plaintiffs  in  error. 
M.  T.  Reynolds,  for  defendant  in  error. 

JOHNSON,  J.  Whether  there  was  a  variance  between  the 
declaration  and  proof  is  not  material  to  enquire,  as  it  was  at 
most  only  .such  an  OIK;  as  the  Circuit  Judge  might  properly 


NEW-YORK,  APRIL,  1848.  291 

Conover  v.  Insurance  Company. 

disregard  on  the  trial,  and  upon  which  no  bill  of  exceptions 
will  lie.  (HerTc.  Ins.  Co.  vs.  Mann,  4  Hill  187  ;  Mappa  vs. 
Pearce,  15  Wend.  669.) 

The  more  material  inquiry  in  this  case  is  whether  the  con- 
sent to  the  assignment  by  the  Secretary,  Joice,  to  enable  the 
plaintiff  to  procure  a  loan  by  a  mortgage  upon  the  insured 
property,  was  binding  upon  the  company.  For  if  that  is  not 
so,  there  is  an  end  to  this  suit.  The  facts  are  briefly  that  the 
agent  or  attorney  of  Gridley,  the  party  in  interest,  called  at 
the  company's  office  upon  Joice,  the  Secretary,  the  person 
regularly  in  attendance  there  to  transact  their  business,  and 
stated  to  him  that  Gridley  proposed  to  loan  to  the  plaintiff, 
Conover,  $500,  and  take  a  mortgage  upon  the  insured  pro- 
perty, provided  he  could  obtain  the  consent  of  the  company  to 
the  assignment  of  the  policy  as  security.  That  to  enable  the 
parties  to  carry  out  their  arrangement,  the  Secretary  en- 
dorsed the  consent  upon  the  policy.  Whereupon  the  $500 
were  advanced,  and  the  mortgage  and  assignment  executed. 
Joice  testifies  that  he  was  in  the  habit  frequently  of  giving 
consent  to  the  assignment  of  policies  for  the  same  purpose, 
and  always  supposed  he  was  authorized  to  do  so  by  the  by- 
laws or  some  resolution  of  the  directors  ;  though  on  looking 
into  the  by-laws  and  minutes,  as  it  would  seem  for  the  first 
time  on  the  trial,  for  some  evidence  of  such  authority,  he  was 
unable  to  find  it,  and  thence  concluded  none  such  had  been 
given.  It  further  appeared  on  the  trial  that  the  policy  of  the 
President  of  the  company  had  also  been  assigned  to  secure 
the  payment  of  a  mortgage  upon  his  property  given  after  the 
insurance,  and  that  the  consent  was  endorsed  upon  it  in  the 
same  manner  as  the  one  in  question.  Also  upon  producing 
the  book  of  policies  where  memorandums  are  entered  of  such 
as  have  been  assigned,  the  consent  in  every  instance  was  found 
to  have  been  endorsed  by  the  Secretary,  Joice.  Most  of  this 
evidence  was  objected  to  as  improper.  But  I  think  it  was 
properly  admitted,  for  the  purpose  of  showing  not  only  who 
was  entrusted  with  the  company's  business,  but  the  manner 


292  CASES  IN  THE  COURT  OF  APPEALS. 


Conover  v.  Insurance  Company. 


in  which  transactions  of  this  character  had  been  uniformly 
conducted. 

Some  evidence  was  introduced  on  the  part  of  the  defendant 
helow  to  show  that  these  acts  of  their  Secretary  were  never 
brought  to  the  knowledge  of  the  Board  of  Directors,  or  re- 
ceived their  formal  ratification.  And  it  is  insisted  that  inas- 
much as  the  Board  never,  by  any  formal  act,  gave  their  sanc- 
tion, and  the  by-laws  required  the  consent  in  writing  of  the 
Directors  to  any  conditional  alienation  by  mortgage  subse- 
quent to  the  insurance,  the  consent  in  this  case  was  unau- 
thorized and  void.  I  cannot  subscribe  to  this  doctrine.  The 
Directors  were  bound  to  know  the  uniform  course  pursued  by 
their  sole  agent  in  the  transaction  of  their  business  at  their 
office,  especially  where  regular  entries  of  his  acts  were  made 
in  their  books,  and  they  must  be  held  responsible  on  the  ground 
of  a  tacit  assent  and  approval  unless  they  can  show  that  by  a 
strict  vigilance  and  scrutiny  into  his  acts  they  were  unable  to 
ascertain  the  course  he  was  pursuing,  and  could  not  therefore 
arrest  it  or  put  the  public  upon  their  guard.  It  is  enough,  it 
seems  to  me,  that  here  the  party  in  interest  went  to  the  sole 
place  where  the  business  of  the  company  was  transacted,  and 
procured  what  was  intended  on  all  hands  to  be,  and  I  think 
in  effect  was,  an  assent  to  the  execution  of  the  mortgage,  as 
well  as  the  assignment  of  the  policy  from  one  of  the  principal 
officers  having  the  sole  charge  of  the  business,  and  that  too  in 
the  same  form  as  it  had  been  frequently  done  there.  (Bank 
of  Vcrgcnnes  vs  Warren,  7  Hill  91.) 

Incorporated  companies  whose  business  is  necessarily  con- 
ducted altogether  by  agents,  should  be  required  at  their  peril, 
to  see  to  it  that  the  officers  and  agents  whom  they  employ,  not 
only  know  what  their  powers  and  duties  are,  but  that  they  do 
not  habitually  and  as  a  part  of  their  system  of  business  trans- 
cend those  powers.  How  else  arc  third  persons  to  deal  with 
them  with  any  degree  of  safety  ?  They  can  have  no  access 
to  the  by-laws  and  resolutions  of  the  board,  and  no  means  of 
judging  in  the  particular  instance  whether  the  officer  is  or  is 
not  within  the  prescribed  limits. 


NEW- YORK,  APRIL,  1348.  293 


Conover  v.  Insurance  Company. 


All  that  Gridley  can  be  supposed  to  have  known  in  the  case 
before  us  would  be  derived  from  the  face  of  the  policy.  There 
he  would  only  learn  that  the  interest  of  the  insured  therein, 
was  not  assignable  without  the  consent  of  the  company  mani- 
fested in  writing  in  pursuance  of  the  by-laws  and  endorsed 
upon  the  policy.  He  accordingly  repairs  to  the  office  where 
he  had  a  right  to  suppose  he  could  have  the  consent  manifest- 
ed and  endorsed  in  the  proper  form.  It  is  done  according  to 
the  system  and  in  the  form  adopted  and  uniformly  pursued 
there  by  an  officer  having  charge  of  the  business  and  who  sup- 
posed this  peculiarly  within  his  province.  In  the  faith  that- 
all  is  right,  he  advances  his  money  and  receives  his  mortgage 
and  assignment.  No  objection  is  made  to  this  or  numerous 
similar  transactions,  and  even  after  the  fire,  payment  is  re- 
fused upon  an  entirely  different  ground.  Clearly,  as  it  seems 
to  me,  the  company  are  not  now  at  liberty  to  dispute  or  deny 
the  authority  of  their  Secretary  to  endorse  the  consent  in 
question.  The  objection  that  the  execution  of  the  mortgage 
avoided  the  policy,  was  not  distinctly  made  on  the  trial.  But 
had  it  been  made  there  as  distinctly  as  it  is  here  it  could  have 
been  of  no  avail,  as  it  sufficiently  appears  that  the  only  ob- 
ject the  company  could  have  in  giving  the  consent  was  to  en- 
able Conover  to  borrow  money  by  a  mortgage  upon  the  in- 
sured property. 

Nor  are  we  called  upon  to  decide  whether  the  absolute  alien- 
ation by  Conover  after  the  assignment  of  the  policy  is  a  good 
defence,  as  the  point  was  not  raised  on  the  trial.  But  if  we 
v/ere,  I  do  not  see  how  the  interest  of  Gridley,  the  assignee, 
could  be  affected  by  it.  (Traders  Ins.  Co.  vs.  Roberts,  9  Wend. 
404.)  The  judgment,  I  think,  should  be  affirmed. 

GRAY,  J.  One  ground  of  the  motion  for  a  nonsuit  made  on 
the  trial  was,  that  there  Was  no  proof  that  the  Secretary  of 
the  Company  had  authority  to  consent  to  the  assignment  of 
the  policy  of  insurance.  On  this  point  I  cannot  entertain  a 
doubt  that  the  evidence  was  pertinent  and  sufficient  to  carry 
the  cause  to  the  jury  ;  and  the  jury  having  found  in  favor  of 


294  CASES  IN  THE  COURT  OF  APPEALS. 


Conover  v.  Insurance  Company. 


the  existence  of  the  authority,  their  verdict  is  conclusive  as 
to  this  branch  of  the  case. 

It  was  insisted,  on  the  part  of  the  plaintiffs  in  error,  that 
the  mortgage  given  by  the  defendant  in  error  to  Gridley,  was 
an  alienation  of  the  property  insured  within  the  meaning  of 
the  seventh  section  of  the  act  according  to  which  this  Com- 
pany was  incorporated,  (Stat.  1836,  p.  44,  §  7,)  and  there- 
fore that  it  avoided  the  policy.  The  language  is,  "  whenever 
any  property  insured  with  this  corporation  shall  be  alienated 
by  sale  or  otherwise,  the  policy  shall  thereupon  be  void,"  &c. 
The  Legislature  without  doubt  used  the  word  in  the  ordinary 
sense  which  belongs  to  it,  and  it  seems  to  me  quite  clear  that 
it  does  not  embrace  a  mortgage  which  creates  but  a  lien  or  se- 
curity, and  does  not  transfer  the  title. 

Nor  did  the  policy  become  void  by  reason  of  the  13th  by- 
law of  the  Company,  requiring,  when  a  mortgage  is  given  by 
the  insured,  that  he  shall  make  a  written  representation  there- 
of to  the  Company.  It  may  fairly  be  presumed  from  the 
evidence  in  the  case,  and  the  jury  have  so  found,  that  this  re- 
quirement was  complied  with,  or  that  it  was  dispensed  with  by 
the  authority  of  the  Company. 

If  the  giving  of  the  mortgage  by  the  insured  had  been  an 
alienation  of  the  property  within  the  seventh  section  of  the, 
act,  the  action  would  have  to  be  brought  in  the  name  of  the  as- 
signee of  the  policy  ;  but  as  the  case  was  not  within  that  sec- 
tion, the  suit  was  properly  brought  in  the  name  of  Conover. 
(Jesxel  vs.  Williamsburgh  Ins.  Co.  3  Hill  88  ;  Mann  vs.  Her- 
kimcr  Jus.  Co.  4  Hill  187.) 

I  see  no  error  in  the  judgment,  and  am  of  opinion  that  the 
same  should  be  affirmed. 

Judgment  affirmed. 


NEW-YORK,  APRIL,  1848.  295 


Mattison  v.  Baucus. 


MATTISON  vs.  BAUCUS.  . 


HA  639 
ell  '505 
jll  '510 


Where,  in  a  mortgage  of  personal  property,  it  was  provided  that  the  mortgagor 
should  permit  the  mortgagee  to  "  have,  possess,  occupy,  and  enjoy,"  the  mort 
gaged  property,  whenever  he  should  demand  the  same,  and  after  the  mortgagor 
had  absconded,  the  mortgagee  took  possession  of  the  property  by  virtue  of  the  -,  a  27 

mortgage ;  held,  that  the  interest  of  the  mortgagor  was  not  the  subject  of  levy     ^5  J119 

upon  execution,  although  the  debt  secured  by  the  mortgage  had  not,  at  the  time     22  2  39 

of  the  levy,  become  due.  e28  1577 

It  seems  that  the  interest  of  a  mortgagor  of  personal  property,  even  before  for    ?_  ,  jg-.  9 

feiture,  where  he  has  not  the  right  of  possession  for  a  definite  period,  is  but  a     g2  1223 

right  of  redemption  merely,  which  is  not  the  subject  of  levy  and  sale  upon  jH4  2557 

execution. 

On  error  from  the  Supreme  Court.  Mattison  sued  Baucus 
in  trover  in  a  Justice's  Court,  in  the  county  of  Rensselaer, 
and  recovered  judgment.  The  defendant  appealed  to  the 
Common  Pleas  of  that  county,  where  the  cause  was  tried  in 
1844,  and  the  plaintiff  again  recovered  judgment  for  the  value 
of  the  property  in  question.  A  bill  of  exceptions  was  taken 
by  the  defendant  on  that  trial,  and  a  writ  of  error  brought  by 
him  into  the  Supreme  Court,  where  the  judgment  of  the  Com- 
mon Pleas  was  reversed,  and  a  venire  de  novo  awarded.  A 
judgment  record  of  such  reversal  being  m'ade  up,  Mattison 
now  brings  error  to  this  Court.  The  facts,  so  far  as  material 
to  the  decision  of  the  Court,  are  stated  in  the  opinion  of 
GARDINER,  J. 

T.  0.  Ripley^  for  plaintiff  in  error. 
J.  Pierson,  for  defendant  in  error. 

GARDINER,  J.,  delivered  the  opinion  of  the  Court.  Upon 
the  trial  in  the  Common  Pleas,  the  plaintiff  gave  evidence 
tending  to  prove  a  judgment  in  favor  of  one  Basset  against 
John  Foster,  for  §20,66,  and  execution  issued  upon  trie  same 
and  delivered  to  Mattison,  the  plaintiff,  who  was  a  constable, 
by  virtue  of  which  he  levied  upon  the  property  in  question  in 


296  CASES  IN  THE  COURT  OF  APPEALS. 


Mattison  r.  Haucus. 


July,  1839,  then  being  in  possession  of  one  Lyon.  It  furthei 
appeared  that  Foster,  the  judgment  debtor,  had  previously 
and  on  the  llth  day  of  June,  1839,  executed  a  chattel  mort- 
gage of  said  property,  in  due  form  of  law,  to  Lyon,  to  secure 
a  debt  owing  by  the  former  to  the  latter,  of  §48,16,  with  in- 
terest, to  be  paid  in  six  months  from  the  date  of  said  mort- 
gage. The  mortgage  contained  a  provision,  "  that  the  said 
Foster  should  permit  Lyon,  his  executors,  &c.,  to  have,  pos- 
sess, occupy  and  enjoy,  the  said  articles  of  property,  whenever 
he  or  they  should  demand  the  same."  It  also  appeared  that 
Foster  had  absconded,  and  that  Lyon  had  taken  possession  of 
the  property,  under  the  mortgage,  prior  to  the  levy  by  Mat- 
tison, and  that  the  property  had  been  converted  subsequent 
to  the  said  levy  by  the  defendant,  Baucus,  who  took  it  from 
the  possession  of  Lyon,  the  mortgagee,  where  it  had  remained 
from  the  time  of  the  levy  to  the  time  of  the  conversion  by  the 
defendant.  It  was  also  proved,  that  after  the  conversion 
aforesaid,  and  subsequent  to  the  bringing  of  the  appeal,  Bas- 
sett,  the  judgment  creditor,  took  an  assignment  of  the  mort 
gage  from  Lyon,  which  he  held  at  the  time  of  the  trial  in  the 
Common  Pleas. 

The  defendant  moved  for  a  nonsuit  upon  various  grounds, 
among  others,  "  that  the  plaintiff  never  acquired  any  posses- 
sion by  his  pretended  levy  so  as  to  enable  him  to  maintain 
trespass  or  trover.  That  the  actual  and  legal  possession  of 
the  property  was  in  Lyon,  under  the  mortgage  from  Foster." 
The  Common  Pleas  refused  to  nonsuit,  and  the  defendant  ex- 
cepted.  The  Court  directed  the  jury  to  find  a  verdict  for  the 
plaintiff  for  $50,47,  being  the  whole  value  of  the  property, 
to  which  direction  the  defendant  also  excepted. 

Both  of  the  exceptions  are  well  taken.  Cases  in  the  Su- 
preme Court  and  the  Court  of  Errors,  recognize  the  principle, 
that  the  interest  of  a  mortgagor  having  a  right  to  redeem, 
and  the  right  to  the  possession  of  the  mortgaged  property  for 
a  definite  period,  m.-ty  be  sold  upon  execution.  (Marsh  vs. 
Lntwncc,  4  Cotr.  4U7  :  (ni*  vs.  Wood,  3  Wend.  ;iOO  :  Bnili 
vs.  /liirton,  8  Wc,i<l.  347-H  ;  10  Wend.  ?>'22  ;  ] 7  Wend.  ;">..; 


NEW-YORK,  APRIL,   1848.  297 


Mattison  v.  Baucus. 


The  debt  secured  by  the  mortgage  to  Lyon,  was  not  paya- 
ble, according  to  the  provisions  of  that  instrument,  until  the 
month  of  December,  1839.  Foster,  the  mortgagor,  had  there- 
fore a  right  of  redemption.  But  by  the  express  terms  of  the 
mortgage,  the  mortgagee  "  was  at  all  times,  upon  demand, 
entitled  to  possess,  occupy,  and  enjoy,"  the  property  mort- 
gaged, and  the  case  shows  that  he  had  taken  and  held  posses- 
sion at  the  time  of  the  levy.  The  interest  of  Foster,  the 
mortgagor  ,and  judgment  debtor,  was  a  right  of  redemption 
only,  a  mere  chose  in  action,  not  the  subject  of  levy  and  sale 
upon  execution,  according  to  the  authorities  cited,  unless  united 
with  a  right  to  the  possession  for  a  definite  period.  (3  Wend. 
500.) 

The  levy  therefore  by  the  plaintiff,  was  wholly  inoperative. 
It  gave  no  lien  upon  the  property,  and  consequently  no  right 
to  maintain  this  action. ' 

The  nonsuit  should  therefore  have  been  granted,  and  the 
judgment  of  the  Supreme  Court  reversing  that  of  the  Com- 
mon Pleas  was  right.  fc  It  is  unnecessary  to  consider  the  other 
questions  made  at  the  trial,  as  the  point  decided  will  dispose 
of  the  cause  finally. 

Judgment  affirmed. 

JONES.  JOHNSON  and  WRIGHT,  Js.,  dissented. 

38 


298 


CASES  IN  THE  co:  i:i'  c>:    \iTK\r.s. 

Dodge  f.  Man u ing. 


298 


s 
2 

e  7 
71 
73 
79 


=507 
'167 
'103 
'119 
J143 


HA    794   CORNELIA  DODGE,  Appellant,  vs.  RALPH  MANNING,  HARMA- 
NUS  BECKER,  and  ALEXANDER  BOYD,  Respondents. 

A  testator  by  his  will,  made  in  1804,  gave  all  his  real  and  personal  estate  to  hia 
wife  during  her  life,  and  after  her  death  to  his  grandson.  To  his  grand- 
daughter he  gave  a  legacy,  to  be  paid  by  his  grandson,  "  out  of  the  estate,  in 
one  year  after  he  should  become  of  age.  The  grandson  became  of  age  in 
1820,  but -the  widow's  life  estate  did  not  terminate  until  1832;  field,  that  the 
legacy  was  not  payable  until  the  latter  perio'd,and  therefore  thata  bill  filed  soon 
afterwards,  to  recover  the  legacy,  was  not  liable  to  a  presumption  of  payment 
from  lapse  of  time. 

The  grandson,  in  1826,  mortgaged  the  real  estate  which  he  took  under  the  will, 
and  portions  of  it  were  purchased  by  the  respondents,  with  notice  of  the  .ega- 
cy,  at  a  sale  upon  the  foreclosure  of  the  mortgage.  Upon  bill  filed  by  the  legatee 
against  the  respondents  and  the  grandson,  further  held,  that  the  grandson,  by 
accepting  the  estate,  became  personally  liable  for  the  legacy,  that  the  legacy 
was  an  equitable  charge  upon  the  real  estate,  but  that  the  respondents  should 
not  be  charged  in  respect  to  the  real  estate  in  their  hands,  except  in  case  of  a 
deficiency  alter  the  remedy  should  be  exhausted  against  the  grandson. 

Appeal  from  Chancery.  The  appellant  filed  her  bill  before 
the  Vice  Chancellor  of  the  Fourth  Circuit,  against  the  re- 
spondents and  John  B.  Borst,  in  which  the  case  was  stated  in 
substance  as  follows :  John  I.  Becker,  of  Middleburgh,  Scho- 
harie  county,  died  in  or  about  the  year  1804,  having  first 
made  his  last  will  and  testament,  by  which,  after  devising 
twenty  acres  of  land  to  his  daughter  Caty,  the  wife  of  Michael 
Borst,  he  gave  all  the  residue  of  his  estate,  real  and  personal, 
to  his  wife  Cornelia  during  her  life,  and  after  her  death  to  the 
defendant,  John  B.  Borst,  who  was  his  grand-son,  if  he  should 
arrive  at  the  age  of  twenty-one  years.  To  his  grand-daughter 
Cornelia,  the  appellant,  he  gave  a  legacy  of  two  hundred  and 
fifty  dollar.?,  to  be  paid  out  of  his  estate  by  his  said  grand- 
son, John  B.  Borst,  in  one  year  after  he  should  arrive  at  the 
age  of  twenty-one.  If  John  B.  Borst  should  not  arrive  at 
the  age  of  twenty-one,  then  the  estate  was,  by  the  will,  given 
over  to  Peter  Borst,  who  was  in  that  case  directed  to  pay  the 
legacy  out  of  the  estate.  Other  legacies  were  also  given  by 
the  will  to  the  testator's  other  grand-children,  with  the  same 


NEW-YORK.  APRIL,   1848.  299 

Dodge  v.  Manning. 

direction  as  to  their  payment.  The  testator's  wife  Cornelia, 
and  two  other  persons,  were  appointed  executors.  John  B. 
Borst  became  of  age  in  1820,  and  Cornelia,  the  testator's 
widow,  died  in  1832.  In  the  year  1826,  John  B.  Borst  exe- 
cuted a  mortgage  upon  the  real  estate  so  devised  to  him,  to 
George  Maxwell,  to  secure  the  payment  of  $6,000.  In  July, 
1834,  this  mortgage  having  been  foreclosed  in  Chancery,  the 
premises  covered  by  it  were  sold  by  a  master,  under  the  de- 
cree, in  separate  parcels,  and  the  respondents  and  J.  B.  Borst 
became  the  purchasers  separately,  subject  to  the  payment  of 
the  legacy  to  the  appellant,  and  entered  into  possession  of  the 
premises  respectively  purchased  by  them.  The  prayer  of  the 
bill  was,  that  the  defendants,  or  such  of  them  as  ought  to  do 
so,  might  be  decreed  to  pay  the  legacy  and  interest,  and  if 
necessary,  that  the  premises  in  their  possession  might  be  sold, 
&c.,  and  for  general  relief. 

The  defendant,  .John  B.  Borst,  answered  separately  admit- 
ting the  facts  charged  in  the  bill. 

The  respondents  answered,  admitting  that  the  legacy  was 
mentioned  as  a  charge  upon  the  land  at  the  time  they  pur- 
chased, but  denying  that  they  purchased  in  any  manner  sub- 
ject to  the  legacy,  averring  also  that  the  mortgage  under 
which  they  purchased  was  not  subject  to  the  legacy,  and  that 
the  sale  under  the  decree  was  absolute.  They  also  alleged 
that  the  legacy  had  been  paid,  and  if  not,  they  insisted  that 
John  B.  Borst,  by  accepting  the  devise,  became  personally  lia- 
ble therefor,  and  that  it  was  an  equitable  lien  upon  so  much 
of  the  premises  as  was  owned  by  him.  The  answer  also  set 
up,  that  the  testator  left  personal  estate  to  an  amount  sufficient 
to  pay  the  legacies.  A  replication  was  filed  to  the  respond- 
ents' answer,  and  proof  was  taken,  which  is  not  necessary  to 
be  stated  further  than  that  it  related  to  the  allegation  of  pay- 
ment, and  to  what  was  said  about  the  legacy  at  the  time  the 
defendants  purchased  at  the  master's  sale,  and  that  it  tended 
to  show  that  the  personal  property  left  by  the  testator  was 
sufficient  to  pay  all  the  legacies. 

The  Vice  Chancellor,  on  the  pleadings  and  proofs,  made  a 


300  CASES  IN  THE  COURT  OF  APPEALS. 


Dodge  i-.  Manning. 


decree  declaring  that  the  legacy  was  a  charge  on  the  real 
estate  purchased  by  the  defendants  respectively,  that  the  com- 
plainant was  entitled  to  recover  the  same,  and  directing  a 
reference  to  compute  the  amount  and  apportion  the  same 
among  the  defendants  according  to  their  respective  bids,  &c. 
The  respondents  appealed  to  the  Chancellor,  who  reversed  the 
decree  of  the  Vice  Chancellor,  and  directed  the  bill  to  be  dis- 
missed as  to  them,  with  costs,  upon  the  ground  principally, 
that  from  the  evidence  in  connection  with  the  lapse  of  time, 
it  appeared  satisfactorily  to  him  that  the  legacy  had  been  paid, 
lie  however  made  a  decree  against  the  defendant,  John  B. 
Borst,  for  the  payment  of  the  legacy  and  costs  of  suit,  and 
charged  the  portion  of  the  premises  owned  by  him  with  such 
payment.  The  complainant  appealed  to  this  Court. 

N.  Hill,  Jr.,  for  appellant. 

M.  T.  Reynolds,  for  respondents. 

GRAY,  J.  One  of  the  reasons,  if  not  the  principal  one, 
assigned  by  the  Chancellor  for  a  decree  dismissing  the  bill  as 
to  the  respondents,  is,  that  the  legacy  to  recover  which  the 
bill  was  filed,  had  been  paid  ;  and  this  conclusion  is  supposed 
to  be  justified  by  the  lapse  of  time  and  the  evidence  of  one 
of  the  witnesses.  If  I  do  not  misapprehend  the  effect  of  the 
will,  no  presumption  of  payment  can  be  derived  from  the  lapse 
of  time.  It  is  true  that  according  to  one  clause  in  the  will 
the  legacy  became  payable  in  one  year  after  John  B.  Borst 
attained  his  majority,  which  was  in  1820 ;  but  it  Avas  directed 
to  be  paid  by  Borst  "out  of  the  estate'  given  to  him,  and  on 
looking  at  the  whole  will  it  is  entirely  clear  that  he  was  not 
to  have  the  estate  until  the  death  of  his  grand-mother,  the 
testator's  widow,  which  did  not  occur  until  1832.  It  seems 
to  me,  therefore,  that  the  legacy  did  not  become  due  until  the 
period  last  named,  and  it  is  not  pretended  that  the  time  which 
elapsed  between  that  period  and  the  filing  of  the  bill,  would 
warrant  in  the  slightest  degree  a  presumption  of  payment. 


NEW-YORK,  APRIL,  1848.  3Q1 

DoJge  v.  Manning. 

As  to  the  evidence  tal^en  on  this  point,  we  are  all  of  opinion, 
that  there  was  nothing  in  it  to  justify  the  conclusion  at  which 
the  Chancellor  arrived. 

The  decision  of  the  Vice  Chancellor  charged  all  the  defend- 
ants with  the  payment  of  the  legacy  and  costs,  without  any 
discrimination  founded  upon  the  equitable  right  of  the  respond- 
ents to  insist,  that  the  defendant,  John  B.  Borst,  and  the  real 
and  personal  estate  of  the  testator  in  his  hands,  should  be  first 
charged,  and  that  a  resort  should  not  be  had  to  the  estate 
purchased  by  them,  until  the  remedy  against  Borst  should 
first  be  exhausted.  In  this  respect  I  am  of  opinion  that  the 
Vice  Chancellor  erred.  It  is  true,  that  by  the  provisions  of 
the  will,  the  legacy  in  question  became  an  equitable  charge 
upon  all  the  real  estate  devised  to  Borst,  of  which  that  pur- 
chased by  the  respondents  respectively,  at  the  master's  sale, 
is  a  part.  But  the  devisee,  by  accepting  the  real  and  person- 
al estate  devised  and  bequeathed  to  him,  became  personally 
liable  for  the  payment  of  the  legacies  which  the  will  directed 
him  to  pay.  He  is  therefore  primarily  liable,  and  the  remedy 
should  first  be  exhausted  against  him  and  the  real  and  person- 
al estate  of  the  testator  remaining  in  his  hands,  before  the 
respondents  should  be  charged  in  respect  to  the  real  estate 
purchased  by  them.  If  they  had  purchased  expressly  subject 
to  the  payment  of  the  legacy,  that  of  itself  might  have  made 
the  estate  in  their  hands  directly  and  primarily  chargeable. 
But  I  concur  with  the  Chancellor  that  there  is  nothing  in  the 
evidence  to  justify  the  inference  that  they  purchased  in  that 
manner.  The  admission  in  their  answer,  as  well  as  the  evi- 
dence, merely  shews  that  they  had  notice  of  the  existence  of 
the  legacy.  If  the  decree  of  the  Chancellor,  therefore,  had 
modified  that  of  the  Vice  Chancellor  in  accordance  with  these 
views,  it  would,  in  my  judgment,  have  been  a  correct  disposi- 
tion of  the  case.  But  as  the  Chancellor's  decree  directs  the 
bill  to  be  dismissed,  as  to  the  respondents,  with  costs,  it  should 
be  reversed,  and  a  decree  should  be  entered  charging  the  lands 
purchased  by  them  with  the  payment  of  the  legacy  and  costs 
of  suit,  so  far  as  there  may  be  a  deficiency  after  the  appellant 


302  CASES  IN  THE  COURT  OF  APPEALS. 


Dodge  v.  Manning. 


shall  have  exhausted  her  remedy  against  the  defendant,  John 
B.  Borst. 

JEWETT,  CH.  J.  By  the  terms  of  the  will,  the  legacy  given 
to  the  complainant  was  to  be  paid  out  of  the  estate  of  the 
testator,  by  John  B.  Borst,  sole  devisee  and  legatee  of  all  the 
property  of  the  testator,  (except  twenty  acres  of  land  devised 
to  another)  real  and  personal,  subject  to  the  life  estate  therein 
devised  and  bequeathed  to  the  testator's  widow.  The  legacy 
thus  given  became  an  equitable  lien  upon  the  reversionary  in- 
terest, as  well  in  the  real  as  personal  property,  so  devised  and 
bequeathed  to  Borst ;  and  a  personal  charge  upon  him  in  case 
of  his  acceptance  of  the  testator's  bounty,  in  respect  to  the 
estate  devised  and  bequeathed  to  him.  (Harris  vs.  Fly,  7 
Paige  421  ;  Glen  vs.  Fisher,  6  Johns.  Chy.  85.) 

J.  B.  Borst  accepted  the  devise.  That  is  shown  by  the 
mortgage  upon  the  real  estate  devised,  executed  by  him  to 
Maxwell,  in  1826,  containing  a  power  of  sale.  He  thereby 
became  personally  bound  to  pay  the  legacy  given  to  the  com- 
plainant according  to  the  terms  of  the  will,  which  a  Court  of 
Equity  will  compel  him  to  discharge.  As  between  him  and 
the  complainant,  it  is  not  material  for  her  to  show,  that  he 
had  procured  an  account  and  payment  from  the  executors  of 
the  testator,  of  the  proceeds  of  the  personal  estate  prior  to  the 
filing  of  her  bill.  She  may  sustain  her  claim  against  him 
personally,  and  enforce  her  lien  against  any  of  the  property 
devised  or  bequeathed  to  him  remaining  in  his  hands,  without 
calling  upon  the  executors  of  the  testator  for  an  account  and 
payment ;  although  it  would  have  been  competent  for  her  to 
have  made  the  executors  parties  with  him,  and  thereby  reached 
the  personal  fund  in  his  hands,  that  being  the  primary  fund 
for  the  payment  of  her  legacy. 

But  as  between  the  complainant  and  the  defendants,  Man- 
ning, Becker  and  Boyd,  they  have  an  equitable  right  as  against 
her,  to  insist  that  she  shall  first  exhaust  her  remedy,  not  only 
as  against  Borst  personally,  but  as  against  that  portion  of  the 
property,  real  and  personal,  remaining  in  his  hands,  or  to 


NEW  YORK,  APRIL,  1848.  3Q3 

Dodge  v.  Manning. 

which  he  is  entitled,  before  she  can  enforce  her  lien  as  against 
that  portion  of  the  property  purchased  by  them  on  the  sale 
under  the  mortgage  foreclosure. 

Although  the  complainant's  legacy  in  equity  is  a  prior  lien 
upon  all  of  the  estate  given  to  Borst  by  the  will,  for  its  satis- 
faction, yet  that  portion  of  it  remaining  in  the  hands  of 
Borst  and  the  proceeds  of  the  personal  estate  to  which  he  is 
entitled,  is  primarily  liable  for  its  payment  in  exoneration  of 
those  portions  which  have  been  purchased  by  Manning,  Beck- 
er and  Boyd.  If  the  bill  showed  that  the  personal  estate  had 
been  exhausted  in  the  course  of  administration,  or  that  the 
persons  who  are  accountable  for  it  are  not  responsible,  or  that 
it  had  been  accounted  for  and  paid  or  delivered  to  Borst,  or 
if  the  executors  in  whose  hands  the  same  remained,  were  parties 
to  this  suit ;  in  either  case  the  complainant  might  have  been 
entitled,  in  case  her  legacy  remained  unpaid,  to  a  decree  for 
payment  and  satisfaction  out  of  that  portion  of  the  real  estate 
so  purchased  by  Manning,  Becker  and  Boyd,  for  so  much  as 
should  remain  unpaid  after  applying  what  should  be  received 
under  a  decree  against  Borst  personally,  and  for  sale  of  that 
portion  of  the  property  remaining  in  his  hands,  and  after  the 
application  of  the  avails  of  the  personal  estate  undisposed  of 
by  him.  But  the  complainant  has  failed  to  present  by  her 
bill  such  a  case  as  will  entitle  her  to  a  decree  to  enforce  her 
lien  as  against  the  devised  premises  in  the  hands  of  Manning, 
Becker  and  Boyd,  in  the  event  that  she  does  not  obtain  satis- 
faction under  a  decree  against  Borst,  and  for  the  sale  of  that 
portion  of  the  premises  still  remaining  in  his  hands,  on  the 
ground  that  it  does  not  appear  but  that  the  personal  estate 
still  remains  in  the  hands  of  the  executors  which  might  be 
reached  and  applied  upon  or  in  satisfaction  of  her  demand. 

The  Chancellor  dismissed  the  bill  as  against  Manning, 
Becker,  and  Boyd,  on  the  ground  that  there  was  sufficient  evi- 
dence to  show  that  the  complainant's  legacy  had  been  paid  to 
Dodge,  her  husband,  in  his  life  time.  I  have  considered  the 
evidence  relied  on  to  show  that  fact,  and  am  constrained  to 
say  that  I  ain  unable  to  come  to  that  conclusion.  There  are, 


304  CASES  IN  THE  COURT  OF  APPEALS. 

Dodge  v.  Manning. 

it  is  true,  some  circumstances  which  render  it  quite  probable 
that  payment  was  made  as  is  alleged,  but  I  do  not  see  in  the 
case  any  thing  beyond  that,  that  should  be  deemed  proof 
of  the  fact.  The  testimony  of  Hezekiah  Manning,  the  only 
witness  to  that  point,  falls  far  short  of  it.  In  my  judg- 
ment it  amounts  to  but  little  else  than  an  inference  of  the  wit- 
ness founded  upon  conjecture.  But  from  the  view  which  I  have 
taken  of  the  case,  I  am  of  opinion  that  the  decree  was  right, 
and  should  be  affirmed. 

BRONSON,  J.,  also  delivered  an  opinion  in  favor  of  affirming 
the  decree,  substantially  upon  the  grounds  stated  in  the  opinion 
of  JEWETT,  Cn.  J. 

The  other  Judges  concurred  in  the  result  of  the  opinion 
delivered  by  GRAY,  J.,  and  therefore  it  was 

Ordered  accordingly. 


CASES 


ARGUED   AND    DETERMINED 


COURT  OF  APPEALS 


STATE    OF   NEW-YORK, 

305 

IN  JUNE  AND  SEPTEMBER  TERMS,  1848.  5  '467 

9  7197 

16  3447 

19  7471 

19  7474 

52  1240 

64  3520 

nr  A  L71          154° 

WHITNEY  vs.  ALLAIRE.  d7l         4553 

71  °556 

Where  one  conveys  or  leases  to  another  his  right  in  real  estate,  an  action  will  lie      oc  I2tt 

for  a  fraudulent  representation  as  to  the  territorial  extent  of  such  right.  95  4240 

And  in  such  a  case  the  proper  measure  of  damages  in  favor  of  the  lessee,  is  the  sum      96  2406 

which  in  good  faith  he  is  obliged  to  pay  to  a  third  person  to  obtain  what  the  lease    e"j;  ^" ' 

would  have  given  him  if  the  representation  had  been  true.  .. ..  „  2orvi 

A  demise  for  a  term  commencing  in  futuro,  passes  a  present  interest  in  the  term  to    130  4175 

the  lessee.  130  5178 

And  the  lessee  by  taking  possession  at  the  commencement  of  the  term,  and  after 
having  discovered  the  fraud,  waives  thereby  only  his  right  to  rescind  the  contract, 
but  not  his  right  to  recover  the  damages  occasioned  by  the  fraud. 

The  defendant,  in  February,  executed  to  the  plaintiff  a  writing  under  seal,  stating 
that  he  had  hired  of  the  plaintiff  a  certain  water  lot  and  his  right  to  a  wharf  in  the 
city  of  New- York,  for  one  year  from  the  first  of  May  next,  at  $1000  rent.  He 
was  induced  to  make  the  contract  through  the  fraudulent  representations  of  the 
plaintiff,  that  the  right  mentioned  in  the  lease  comprehended  a  parcel  of  land  which 
in  fact  belonged  to  the  corporation  of  the  city  of  New- York.  The  defendant  dis- 
covered the  fraud  before  the  first  of  May,  and  obtained  from  the  corporation  a  lease 
for  that  parcel  at  an  annual  rent  of  $1000.  On  the  first  of  May  he  took  posses- 
sion of  the  whole  and  occupied  during  the  year.  In  covenant  for  the  rent;  held, 
that  he  was  entitled  to  a  deduction  by  reason  of  the  fraud,  of  the  sum  which  he 
Was  obliged  in  good  faith  to  pay  for  the  corporation  lease. 

VOL.  I.  39 


306     CASES  IN  THE  COURT  OF  APPEALS. 

Whitney  ».  ALaire. 

R  teems,  that  an  action  will  Ho  for  a  fraudulent  representation  by  which  a  party  i» 
induced  to  enter  into  a  contract  which  is  executory  merely.  Per  GARDINER,  J. 

It  seems  also,  that  where  one  conveys  or  .cases  real  estate,  an  action  will  lie  for  a 
fraudulent  representation  as  to  the  title. 

WHITNEY  sued  Allaire  in  covenant  for  rent,  in  the  superior 
court  of  the  city  of  New- York.  On  the  first  trial,  the  charge 
of  the  court  upon  the  question  raised  was  favorable  to  tbe  plain- 
tiff, and  a  verdict  was  had  and  judgment  rendered  for  the 
amount  of  rent  claimed.  That  judgment  was  reversed  by  the 
supreme  court,  on  error  brought,  and  a  new  trial  ordered.  (See 
1  Hill,  484.)  On  another  trial,  the  verdict  and  judgment  of  the 
superior  court  were  in  favor  of  the  defendant.  The  plaintiff, 
having  made  a  bill  of  exceptions,  brought  error  into  the  supreme 
court,  where  the  judgment  was  affirmed.  The  plaintiff  brings 
error  into  this  court. 

The  case,  as  it  appeared  on  the  last  trial,  was  this :  The 
plaintiff  claimed  to  recover  upon  an  instrument  duly  signed 
and  sealed  by  the  defendant,  in  these  words  :  "  I  have  this  day 
hired  of  Stephen  Whitney  the  water  lot,  and  his  right  to  the 
wharf  on  the  east  side  of  Market-slip,  for  one  year  from  the  1st 
of  May  next,  at  the  yearly  rent  of  $1000  and  taxes  on  said 
water  lot,  whatever  it  may  be,  the  rent  to  be  paid  quarterly. 
9th  February,  1837." 

After  the  plaintiff  had  rested,  the  defendant  called  Richard 
C.  White,  who  had  been  sworn  for  the  plaintiff,  and  offered  to 
prove  the  representations  made  by  the  plaintiff  to  the  witness, 
(who  was  the  general  agent  of  the  defendant)  respecting  the  ex- 
tent of  his  right  in  the  wharf  on  the  cast  side  of  Market-slip, 
previous  to  the  signing  of  the  above  memorandum.  The  evi- 
dence was  objected  to  by  the  plaintiff's  counsel,  the  objection 
overruled,  and  an  exception  taken  to  the  decision. 

The  defendant  then  gave  evidence  tending  to  show  that  he 
was  induced  to  sign  the  memorandum  through  a  fraudulent 
representation  of  Whitney,  that  the  right  which  was  mentioned 
in  the  lease  comprehended  a  certain  other  parcel  of  land  which 
turned  out  to  belong  to  the  corporation  of  the  city  of  New- York ; 
that  Allaire  discovered  the  fraud  before  the  term  commenced . 


ROCHESTER,  JUNE,  1848.  397 

Whitney  v.  Allaire. 

and  that  in  order  to  secure  the  parcel  of  land  owned  by  the  cor- 
poration, and  which  was  necessary  for  the  business  of  the  de- 
fendant, the  latter  was  under  the  necessity  of  taking  a  lease 
thereof  from  the  corporation,  at  an  annual  rent  of  $1000. 

White,  the  witness  above  mentioned,  after  testifying  to  the 
conversation  which  occurred  between  him  and  the  plaintiff 
prior  to  the  signing  of  the  memorandum  by  the  defendant, 
stated  that  the  plaintiff  told  him  that  the  wharf  on  the  east 
side  of  Market-slip  was  his,  and  from  this,  witness  supposed 
it  was  his,  and  so  informed  the  defendant.  This  testimony 
was  received  without  objection.  The  plaintiff's  counsel  then 
examined  the  witness,  and  the  defendant  on  further  examina- 
tion proposed  to  ask  the  witness  the  following  question  :  "  What 
did  you  understand,  at  the  time  of  the  said  conversation,  from 
the  statement  of  the  plaintiff,  that  you  did  hire  from  him  ?"  The 
counsel  for  the  plaintiff  objected  to  the  question,  the  objection 
was  overruled,  and  the  plaintiff  excepted. 

The  judge  charged  the  jury  that  to  defeat  the  right  of  the 
plaintiff  to  recover,  the  defendant  must  prove  that  the  plaintiff 
had  been  guilty  of  fraud,  and  not  that  there  had  been  a  mis- 
take or  misconception  upon  the  part  of  the  defendant ;  that  the 
plaintiff  must  have  intended  to  mislead  or  entrap  the  defen- 
dant. That  although  the  defendant,  after  the  discovery  of  the 
extent  of  the  plaintiff's  interest  in  the  wharf  in  question,  had 
entered  into  the  possession  thereof  and  enjoyed  the  use  of  the 
same  for  the  term  specified,  without  rescinding  or  offering  to 
rescind  the  contract,  yet  he  had  a  right  to  set  up  any  fraudulent 
representations  or  concealment  of  the  plaintiff,  in  respect  to 
said  contract,  in  bar  of  his  claim  for  the  rent  or  in  reduction  of 
the  amount  of  such  claim  ;  that  if  the  jury  should  find  that  a 
fraud  had  been  committed  by  the  plaintiff,  in  adjusting  the 
matter,  the  court  would  lay  down  the  rule,  that  the  jury  should 
consider  what  would  have  been  a  fair  rent  of  the  150  feet  of  the 
wharf  owned  by  the  plaintiff;  to  this  sum  should  be  added  the 
three  quarters  rent  due,  and  taxes  claimed  in  the  declaration, 
and  from  that  should  be  deducted  the  $1000  paid  to  the  cor- 
poration, if  they  were  satisfied  that  the  same  was  a  reasonable 


308  CASES  IN  THE  COURT  OF  APPEALS. 

Whitney  t>.  Allaire. 

amount,  and  was  agreed  to  be  paid  by  the  defendant  in  good 
faith,  without  any  intent  to  defraud  the  plaintiff.  The  counsel 
of  the  plaintiff  excepted  to  the  whole  and  each  part  of  the 
charge,  and  the  jury  returned  a  verdict  for  the  defendant. 

E.  Sandford,  for  plaintiff  in  error. 

F.  B.  Cutting,  for  defendant  in  error. 

GARDINER,  J.  The  first  exception  to  the  admissibility  of 
any  evidence  to  establish  the  fraud,  is  sought  to  be  sustained 
upon  two  grounds :  1.  That  the  fraud  relates  to  the  title  to  lands. 
2.  Because  the  matters  given  in  evidence  are  not  embraced 
within  the  lease;  as  the  plaintiff  did  not  demise  the  wharf,  but 
expressly  limited  it  to  his  right  to  the  wharf. 

For  more  than  thirty  years  it  has  been  the  settled  doctrine 
of  the  courts  of  this  state,  that  fraudulent  representations  in 
reference  to  the  title  of  real  estate,  accompanied  with  damage, 
is  a  good  ground  of  action,  and  that  it  is  immaterial  whether 
any  or  what  covenants  are  contained  in  the  deed  of  conveyance. 
This  was  held  in  Wardell  v.  Fosdick,  (13  John.  325,)  where 
the  defendant  fraudulently  sold  without  any  title,  but  in  effect 
with  full  covenants.  In  Monell  v.  Golden,  (13  John.  402,  3,) 
the  representation  was  that  the  vendor,  as  riparian  owner,  had 
the  pre-emptive  right  to  a  grant  of  land  under  water  in  the 
Hudson  river,  and  opposite  the  purchased  premises.  In  Ward 
v.  Wiman,  (17  Wend.  103,)  the  declaration  was  that  the  prem- 
ises were  free  from  incumbrance,  and  an  action  for  the  fraud 
was  sustained  although  the  deed  contained  a  covenant  to  the 
same  effect.  In  Culver  v.  Avery,  (7  Wend.  386.)  the  affirma- 
tion was  that  the  premises  were  clear  of  any  other  incumbrance 
than  the  mortgage  under  which  the  sale  was  effected,  and  that 
the  purchaser  would  acquire  a  perfect  title.  In  the  first  case 
cited,  the  fraud  pertained  to  the  title  of  the  land  conveyed.  In 
the  second,  to  ft  privilege  annexed  to  the  land  ;  in  the  third,  to 
an  incumbrance  upon  the  title  ;  and  in  the  last,  both  to  the  title 


ROCHESTER,  JUNE,  1848.  309 

Whitney  v.  Allaire. 

and  to  incumbrances.  Such  has  been  the  adjudication  of  our 
state  during  the  period  mentioned. 

The  distinction  between  representations  as  to  the  title  to  land, 
and  matters  collateral  to  the  land,  was  taken  in  Culver  v.  Avery, 
and  repudiated,  (7  Wend.  386,)  and  I  think  with  reason. 
There  is  no  middle  ground  of  principle,  between  excluding  evi- 
dence of  fraudulent  representations  in  all  cases  of  the  convey- 
ance of  land,  or  admitting  them  when  they  refer  to  the  title. 
They  all  are  or  may  be  equally  obnoxious  to  objections  arising 
from  the  statute  of  frauds,  and  in  each  case  the  vendee  can 
protect  himself  by  appropriate  covenants.  The  rule  thus  set- 
tled, affecting  as  it  does  the  right  of  property,  should  be  upheld 
unless  its  maintenance  would  conflict  with  established  principles. 
No  such  conflict  is  perceived.  On  the  contrary,  it  harmonizes 
with  the  law  in  relation  to  personal  property,  requires  fair  deal- 
ing from  the  vendor  in  each  case,  and  permits  the  vendee,  with- 
out a  penalty  upon  his  credulity,  to  trust  to  declarations  of 
material  facts  within  the  knowledge  of  the  other  party.  In  a 
word,  to  treat  with  the  vendor  upon  the  presumption  that  he  is 
an  honest  man. 

2.  There  is  no  force  in  the  objection  that  the  plaintiff  did  not 
demise  the  wharf,  but  only  his  right  to  the  wharf,  and  there- 
fore the  representation  did  not  relate  to  a  matter  within  the 
lease.  The  question  in  all  these  cases  is  not  what  passed  by 
the  conveyance,  but  what  would  have  passed  to  the  vendee, 
had  the  representations  been  true.  The  plaintiff  fraudulently 
represented  himself  as  the  owner  of  three  hundred  feet  of  wharf, 
and  the  defendant  would  have  acquired  that  quantity  by  hia 
lease,  had  the  statement  been  true.  The  lessor,  however,  knew 
at  the  time  that  he  was  the  owner  of  one  hundred  and  fifty  feet 
only,  and  the  falsehood  as  to  the  extent  of  his  right,  was  at 
once  the  inducement  to  the  contract,  aad  the  reason  why  it  was 
inoperative.  (Monell  v.  Colden,  supra  ;  Dobell  v.  Stevens,  3 
Barn.  <£*  Cress.  623.) 

The  question  put  to  White,  as  to  his  understanding  of  the 
extent  of  the  plaintiff's  interest  from  his  statement  to  him,  was 
objectionable;  but  it  could  not  have  affected  the  verdict  of  the 


310  CASES  IN  THE  COURT  OF  APPEALS. 

Whitney  v.  Allaire. 


jury.  The  witness  had  previously  sworn,  without  any  objec- 
tion, "  that  the  plaintiff  told  him  that  the  wharf  on  the  east 
side  of  Market-slip  was  his,  and  from  this,  witness  supposed 
that  the  wharf  was  his,  and  so  informed  the  defendant."  His 
"  understanding,"  derived  from  the  plaintiff's  statement,  was 
therefore  a  part  of  the  evidence  before  the  jury,  and  its  repetition 
could  not  have  affected  the  plaintiff  injuriously. 

A  more  important  question  arises  under  the  exception  to  that 
part  of  the  charge  in  which  the  jury  were  told  that  the  discov- 
ery of  the  fraud,  and  the  subsequent  entry  of  the  defendant 
upon  and  the  enjoyment  of  the  demised  premises,  would  not 
bar  his  right  to  damages. 

In  support  of  this  exception  it  was  argued,  1st.  That  until 
the  discovery  of  the  fraud,  the  defendant  was  not  bound  by  the 
memorandum  signed  by  him,  and  then  only  at  his  election: 
that  prior  to  his  adoption,  the  writing  was  in  the  nature  of  a 
proposition^  and  being  adopted  with  a  full  knowledge  of  all  the 
material  facts,  there  could  be  no  fraud,  because  no  deception 
when  the  contract  had  its  inception. 

This  hypothesis  is  rather  specious  than  solid.  The  agree- 
ment when  executed  was  binding  upon  both  parties,  and  could 
be  repudiated  by  neither  without  the  assent  of  the  other,  except 
by  an  action.  If  the  defendant  had  discovered  the  fraud  the 
day  alter  the  contract  was  made,  he  could  have  no  relief  short 
of  a  court  of  equity.  In  the  mean  time  he  would  lose  the  ad- 
vanuige  of  a  sale  of  his  interest,  would  be  in  form  legally  respon- 
sible on  his  covenant,  and  subject  to  the  doubtful  chances  of  a 
litigation  as  the  only  means  of  reinstating  himself  in  his  former 
po?itk'u.  lie  made,  as  he  had  a  right  to  suppose,  an  advan- 
tageous bargain,  when  in  truth  he  had  only  purchased  a  law- 
suit as  a  means  of  deliverance  from  a  bnd  one.  Now  the  very 
gist  of  the  fraud  consists  in  placing  a  man  in  this  situation.  It 
was  an  injury  for  which  the  supreme  court  have  adjudged  an 
action  would  lie,  when  the  contract  was  consummated.  I  sec 
no  reason  to  doubt  the  correctness  of  their  conclusion.  Every 
one  mu .-•»,  perceive  the  distinction  between  a  mere  proposition, 
and  an  agreement  requiring  an  action  to  avoid  it ;  between  the 


ROCHESTER,  JUNE,  1848. 


Whitney  v.  Allaire. 


right  to  annul  a  contract  by  the  mere  volition  of  one  of  the 
parties,  and  a  right  to  resort  to  a  court  of  justice  for  the  same 
purpose. 

In  the  second  place,  it  was  insisted  that  if  there  was  an 
agreement,  it  was  executory  when  the  fraud  was  discovered  ; 
and  in  such  a  case,  whatever  might  be  the  rule  as  to  contracts 
wholly  or  partially  executed,  the  defendant,  if  he  affirmed  the 
contract,  waived  all  right  to  damage  for  the  fraud.  In  the  first 
place,  the  contract  was  not  executory,  if  by  that  is  meant  that 
until  entry,  the  lease  was  a  chose  in  action.  A  lease  to  com- 
mence in  futuro  is  grantable.  (Shep.  Touch.  241.)  The  inter- 
est vests  presently,  although  it  does  not  take  effect  in  possession 
until  a  future  time.  (Comyris  Dig.  tit.  Assignment  ;  Taylor's 
Land,  and  Ten.  207.)  The  defendant,  therefore,  upon  deliv- 
ery of  the  tease,  acquired  an  interest  in  the  term  which  he  could 
assign,  and  for  which  he  could  maintain  ejectment  without  any 
further  act  upon  his  part,  if  possession  was  withheld  after  his 
right  of  entry  became  complete.  (Taylor's  Land,  and  Ten. 
132  ;  Adams  on  Eject.  2d  cd.  33,  161.)  The  interest  of  the  de- 
fendant cannot  be  distinguished  from  the  sale  of  a  chattel  to  be 
delivered  at  a  future  period,  to  be  paid  for  subsequent  to  delivery. 
The  property  would  pass  by  the  contract  of  sale,  and  replevin 
might  be  maintained  by  the  purchaser  after  the  time  stipulated 
for  the  delivery.  (2  Sumn.  R.  211.)  But  if  the  agreement 
was  executory,  it  would  not,  it  is  believed,  change  the  right  of 
the  parties.  It  is  conceded  that  if  the  contract  had  been  partly 
executed,  even  in  the  most  trilling  particular,  the  defendant 
would  have  the  right  to  rescind  and  bring  his  action  for  the 
deceit,  or  affirm  the  contract  and  have  his  remedy  by  way  of 
recoupment  when  sued  for  the  rent.  Why  should  he  not  have 
the  same  remedies  when  the  contract  is  executory  ?  In  neither 
case,  according  to  the  assumption  of  the  plaintiff,  could  there 
be  a  contract  until  ratified  with  a  knowledge  of  the  fraud.  And 
if  an  adoption  under  such  circumstances,  of  the  agreement,  is 
an  abandonment  by  the  person  defrauded,  of  his  claim  to  dam- 
ages for  the  deceit  in  the  one  case,  it  must  be  in  both.  In  neither 
will  repudiation  of  the  contract  alonf  °T  '^V 


CASES  IN  THE  COURT  OF  APPEALS. 


Whitney  v.  Allaire. 

show,  relieve  the  party  defrauded  from  his  responsibility,  and 
restore  him  to  his  rights  as  they  existed  prior  to  the  agreement. 
No  such  distinction  is  recognized  by  the  authorities.  It  is  true, 
that  if  a  party  affirms  a  contract  with  knowledge  of  the  fraud, 
he  affirms  it  wholly,  and  this  whether  it  is  executory,  or  par- 
tially executed.  But  in  neither  case  does  he  affirm  it  as  a  con- 
tract made  in  good  faith.  He  consents  to  be  bound  by  the 
provisions  of  the  agreement,  but  does  not  thereby  release  or 
waive  his  claim  for  damages  arising  from  a  fraud  collateral  to 
the  agreement.  The  case  5  Mees.  cj*  Wels.  R.  83,  is  consistent 
with  this  doctrine,  and  the  cases  referred  to  in  the  opinion  of 
the  supreme  court  cannot  otherwise  be  reconciled  with  each 
other  or  first  principles. 

The  last  question  relates  to  the  damages.  The  rule  given 
to  the  jury  was  as  favorable  as  the  plaintiff  had  a  right  to  re- 
quire. The  measure  of  damages  in  an  action  upon  a  warranty, 
and  for  fraud  in  the  sale  of  personal  property,  are  the  same.  la 
either  case  they  are  determined  by  the  difference  in  value  be- 
tween the  article  sold,  and  what  it  should  be  according  to  the 
warranty  or  representation.  (Sherwood  v.  Sutton,  5  Mason,  1  ; 
Clare  v.  Maynard,  6  Adol  $•  Ellis,  519  ;  4  Hill,  625.)  The 
same  rule  obtains,  I  apprehend,  upon  the  sale  of  real  estate, 
where  the  action  is  for  deceit  ;  although  a  different  one  is  ap- 
plied when  the  suit  is  brought  upon  a  certain  class  of  covenants, 
such  as  that  of  warranty,  quiet  enjoyment,  seisin,  &c.  which  is 
founded  upon  considerations  of  public  policy,  without  reference 
to  (he  actual  damages  sustained  by  the  party. 

In  13  John.  395,  supra,  it  was  held  that  the  defendant  was 
chargeable  with  all  the  damages  resulting  from  the  false  repre- 
sentations. In  Van  Epps  v.  Harrison,  (51-1111,69,)  this  rule 
was  applied  to  an  action  upon  a  bond  given  for  the  purchase 
money  of  land,  and  where  the  defendant  was  suffered  to  recoup 
damages  on  occasion  of  the  fraud  of  the  vendor.  Bronson,  J. 
remarks,  that  the  jury  must  inquire  how  much  less  the  land 
was  worth  for  building  purposes  than  it  would  have  been  had 
the  representations  of  the  vendor  been  true. 

This  rule  of  compensation  is  founded  upon  sound  principles  cf 


ROCHESTER,  JUNE,  1848.  313 

Whitney  v.  Allaire. 

morality.  It  compels  the  fraudulent  vendor  to  make  good  the 
representations,  upon  the  faith  of  which  the  vendee  entered 
into  the  contract.  This  is  but  just.  Applied  to  this  case,  it 
will  at  least  justify  the  charge,  and  the  verdict  of  the  jury.  Tue 
judgment  should  be  affirmed. 

BRONSON,  J.  It  is  not  necessary  in  this  case  to  decide, 
whether  an  action  will  lie  for  a  false  and  fraudulent  represen- 
tation by  the  vendor  of  real  estate  that  he  has  title  to  the  prop- 
erty ;  for  that  question  seems  not  to  have  been  made  on  the 
trial.  And  besides,  the  representation  of  which  the  defendant 
complains  related  to  the  extent  of  the  demised  premises,  rather 
than  the  landlord's  title  to  the  property.  The  conveyance  was 
of  all  the  plaintiff's  right  to  a  wharf,  without  specifying  its 
boundary  or  extent ;  and  the  complaint  is,  that  the  plaintiff 
said  he  owned  the  whole  wharf,  which  is  three  hundred  feet  in 
length,  when  in  truth  he  owned  only  one  half  of  it. 

Actions  have  been  sustained  where  the  deceit  was  in  relation 
to  some  collateral  thing,  as  the  rents  or  other  profits  derived 
from  the  land,  things  appurtenant  to  it,  the  incumbrances  upon 
it,  the  location,  quality  or  condition  of  the  land,  what  the  ven- 
dor paid  for  it,  and  the  like.  (Ekins  v.  Tresham,  1  Lev.  102  ; 
I  Keb.  510,  518,  522,  *S*.  C.,  by  the  name  of  Leakins  v.  Cli- 
zard ;  Lysney  v.  Selby,  2  Ld.  Raym.  1118;  1  Salk.  211,  S. 
C.,  by  the  name  of  Risney  v.  Selby  •  Dobell  v.  Stevens,  3  B. 
fy  C.  623 ;  Bowring  v.  Stevens,  2  C.  $•  P.  337 ;  Pilmore  v. 
Hood,  5  Bing.  N.  C.  97 ;  Holbrook  v.  Burt,  22  Pick.  546 ; 
Moncll  v.  Golden,  13  John.  395  ;  Culver  v.  Avery,  7  Wend. 
380  ;  Ward  v.  Wiman,  17  id.  193  ;  Early  v.  Garret,  9  B.  $• 
C.  928  ;  Sandford  v.  Handy,  23  Wend.  260 ;  Van  Epps  v. 
Harrison,  5  Hill,  63.)  Some  of  these  cases  are  open  to  obser- 
vation ;  but  it  is  enough  for  the  present  to  say,  that  in  none  of 
them  was  the  false  representation  upon  the  naked  fact  of  title. 
In  Wardell  v.  Fosdick,  (13  John.  325,)  the  defendants  fraudu- 
lently sold  and  conveyed  land  which  had  no  real  existence; 
and  it  was  held  that  the  purchaser  might  treat  the  deed  as  a 
nullity,  and  have  an  action  on  the  case  for  the  deceit.  In 

*w    T  40 


3J4     CASES  IN  THE  COURT  OF  APPEALS. 

Whitney  ».  Allaire. 

Kostwick  v.  Lewis,  (1  Day,  250,)  there  was  a  comoination  to 
defraud  the  purchaser  in  relation  to  the  quality  of  the  land,  as 
well  as  the  title  to  it;  and  it  may  fairly  be  inferred  from  the 
report,  that  the  recovery  was  on  the  ground  of  fraud  in  relation 
to  the  quality  alone.  Although  evidence  was  given  that  the 
title  to  a  part  of  the  property  was  out  of  the  vendor,  it  was  ad- 
mitted for  the  sole  purpose  of  showing  that  the  residue  of  the 
tract  was  of  no  value.  In  Wade  v.  Thurman,  (2  Bibb,  583,) 
it  was  held  that  the  vendee  might  have  an  action  against  the 
vendor  for  falsely  representing  that  the  title  to  the  land  was  in 
a  third  person,  who  would  convey  at  any  time.  If  this  case 
does  not  go  too  far  to  prove  any  thing,  it  is  sufficient  to  say  that 
it  is  not  the  case  of  a  fraudulent  representation  by  the  vendor 
of  title  in  himself;  and  I  do  not  find  that  such  an  action  has 
ever  been  maintained.  The  learned  judge  who  delivered  the 
opinion  of  the  court  in  Leonard  v.  Pitney,  (5  Wend.  30,)  evi- 
dently thought  that  such  an  action  would  not  lie  ;  and  the  case 
of  Roswell  v.  Vaiighan,  (Cro.Jac.  190,)  as  understood  by  Lord 
Holt  and  Powell,  J.  in  Lysney  v.  Sclby,  (2  Ld.  Raym.  1 1 19,) 
tends  to  the  same  conclusion.  It  is  a  strong  argument  against 
the  action  that  no  precedent  for  it  has  been  found. 

In  the  usual  course  of  business  men  insert  covenants  in  their 
conveyances  of  real  estate  where  it  is  intended  that  the  vendor 
shall  answer  for  the  goodness  of  the  title  ;  and  it  is  easy  to  see 
that  bad  consequences  may  follow  if  the  vendee  shall  be  allowed 
to  lay  aside  his  deed,  and  have  an  action  founded  upon  con- 
versations about  the  title  pending  the  bargain.  In  Dobdl  v. 
Stevens,  (3  13.  §*  C.  023,)  where  the  vendee  of  a  public  house 
was  allowed  to  recover  in  an  action  for  the  deceitful  represen- 
tations of  the  vendor  in  relation  to  the  amount  of  business  done 
in  the  house,  Chief  Justice  Abbott  said,  the  representation  was 
not  of  any  matter  or  quality  pertaining  to  the  thing  sold,  and 
therefore  likely  to  be  mentioned  in  the  conveyance,  but  was 
altogether  collateral  to  it ;  as  was  the  rent  in  the  case  of  Lis- 
ney  v.  Selby.  And  in  Monell  v.  Colden,  (13  John.  403,) 
Thompson,  Ch.  J.  remarked,  that  the  false  representation  was 
not  respecting  any  thing  to  be  included  in  the  deed,  but  with 


ROCHESTER,  JUNE,  1848. 


Whitney  ».  Allaire. 


respect  to  a  privilege  which  the  plaintiffs  were  to  acquire  in 
consequence  of  owning  the  land  on  the  shore  adjoining  the 
river.  The  intimation  in  both  of  these  cases  is,  that  had  the 
fraud  related  to  the  title,  or  any  thing  else  which  is  usually 
provided  for  in  the  conveyance,  the  action  could  not  have  been 
maintained. 

I  do  not  intend  to  express  a  definitive  opinion  on  the  point  ; 
and  have  only  said  enough  to  show  that  it  is  a  grave  question, 
which,  as  it  is  not  necessarily  before  us,  should  not  be  regarded 
as  settled  by  our  decision. 

A  present  interest  in  the  term  passed  by  the  lease  :  (Allaire 
v.  Whitney,  1  Hill,  484  :)  and  as  the  contract  was  not  wholly 
executory  when  the  defendant  discovered  the  fraud,  the  ques- 
tion which  was  considered  in  The  Saratoga  R.  R.  Co.  v. 
Row,  (24  Wend.  74,)  does  not  arise. 

The  defendant  called  his  agent,  White,  as  a  witness,  who 
gave  the  conversation  between  himself  and  the  plaintiff  about 
hiring  the  wharf;  the  defendant  was  then  allowed  to  ask  him 
what  he  understood  from  the  statement  made  by  the  plaintiff 
on  that  occasion  ;  and  the  witness  answered  that  he  understood 
from  the  conversation  that  the  plaintiff  owned  the  whole  wharf 
from  Water-street  to  the  end  of  the  pier.  The  plaintiff  was  not 
answerable  for  the  manner  in  which  the  witness  understood 
the  conversation,  unless  he  had  a  right  so  to  understand  it  ; 
and  how  it  should  be  understood  was  a  question  for  the  jury. 
It  was  for  them,  and  not  the  witness,  to  draw  the  proper  infer- 
ence from  what  the  plaintiff  said.  I  see  no  principle  on  which 
the  evidence  could  be  properly  received,  and  on  that  ground  I 
think  the  judgment  should  be  reversed,  and  a  venire  de  novo 
be  awarded. 

WRIGHT,  J.  was  also  for  reversal  on  the  same  ground  ;  but 
on  the  other  questions  he  concurred  with  GARDINER,  J. 

JONES,  J.  orally  delivered  an  opinion  for  reversal  on  the  same 
ground  with  BRONSON,  J.  ;  also  on  the  ground  that  the  defen 
dant,  by  taking  and  enjoying  the  possession  after  the  discovery 


316  CASES  IN  THE  COURT  OF  APPEALS. 

Sherman  t>.  The  Mayor,  &c.  of  New-York. 

of  the  alleged  fraud,  had  elected  to  affirm  the  contract,  and 
therefore  had  no  legal  cause  of  complaint.  He  also  thought 
the  rule  of  damages  was  improperly  laid  down  at  the  trial. 

GRAY,  J.  concurred  with  JONES,  J. 

JEWETT,  C.  J.,  RUGGLES,  J.  and  JOHNSON,  J.  concurred  IA 
the  opinion  of  GARDINER,  J. 

Judgment  affirmed. 


SHERMAN  vs.  THE  MAYOR,  ALDERMEN  AND  COMMONALTY 
316  OF  THE  CITY  OF  NEW-YORK. 

'414 

S.  contracted  with  the  corporation  of  the  city  of  New- York  to  furnish  all  the  mate- 
rials and  labor  necessary  to  complete  the  excavation,  re-filling,  and  re-paving  of 
a  trench  of  specified  dimensions  for  water  pipes.  The  corporation  agreed  to  pay 
as  a  " compensation  for  such  excavation,  re-filling,  and  re-paving,"  as  follows: 
"  For  executing  the  digging"  and  re-filling,  seven  cents  per  cubic  yard ;  for  re- 
paving,  &c.  four  cents  per  square  yard.  A  considerable  portion  of  the  trench  waa 
excavated  through  hard  pan,  and  this  was  proved  to  be  worth  75  cents  per  cubic 
yard.  Another  portion  was  through  rock,  worth  $'1,00  per  cubic  yard.  It  was 
also  shown  that  seven  cents  (the  contract  price)  per  yard  was  the  lowest  price  for 
excavating  common  earth.  Held,  nevertheless,  that  S.  could  recover  nothing  be- 
yond the  contract  price,  and  that  extrinsic  evidence  was  not  admissible  to  prore 
the  value  of  excavating  hard  pan  and  rock. 

The  contract  provided  that,  as  the  work  progressed,  the  engineer  of  the  corporation 
should,  upon  the  request  of  the  contractor,  make  estimates  of  the  work  done,  which 
estimates  were  to  be  paid  on  the  next  pay  day,  less  ton  per  cent ;  also  that  when 
the  work  was  done,  the  engineer  should  make  a  final  estimate  of  all  moneys  due 
to  the  contractor,  and  then  the  whole  to  be  paid.  The  engineer  accordingly  made 
a  final  estimate.  It  seems,  however,  competent  in  such  a  case,  to  resort  to  other 
proof  of  the  amount  of  the  work. 

ON  error  from  the  supreme  court.  Sherman  sued  the  mayor, 
aldermen  and  commonalty  of  the  city  of  New- York,  in  the  su- 
perior court  of  that  city.  The  cause  was  heard  before  referees 
appointed  by  that  court,  and  the  case  was  this  :  On  the  17th 
of  November,  1842,  a  written  contract,  under  seal,  was  entered 


ROCHESTER,  JUNE,  1848. 


Sherman  v.  The  Mayor,  &c.  of  New-  York. 


into  between  the  plaintiff  and  defendants,  whereby  the  plaintiff 
agreed  "  to  furnish  all  the  materials  and  labor  necessary  to 
complete  the  excavation,  backfilling,  ramming,  and  re-paving" 
of  a  trench  for  water  pipes  in  14th  street,  from  Union  square 
to  avenue  A.  The  trench  was  to  be  six  feet  wide  at  the  bot- 
tom, and  eight  and  a  half  feet  deep.  The  back  rilling  and  ram- 
ming was  defined  by  the  contract  to  be  the  filling  up  of  the 
trench  in  a  certain  specified  manner,  after  the  pipes  should  be 
laid.  The  compensation  for  the  work  was  provided  for  in  the 
same  agreement  in  these  words  :  "  And  the  parties  of  the 
second  part  agree  to  pay  the  party  of  the  first  part  in  full  com- 
pensation for  the  excavation,  back  filling,  ramming  and  re- 
paving  aforesaid  : 

"  For  executing  the  digging,  back  filling,  and  ramming  of 
the  said  trench,  at  the  rate  of  seven  cents  per  cubic  yard.  For 
re-paving,"  &c. 

It  was  also  provided  in  the  contract,  that  the  engineer  of  the 
corporation  "  should,  upon  request  of  the  contractor,  make  esti- 
mates of  the  work  actually  completed,  and  not  included  in  any 
previous  estimate  ;  and  that  payments  should  be  made  upon 
euch  estimates,  at  the  succeeding  pay  day  as  by  law  establish- 
ed ;  ten  per  cent  being  retained  until  thirty  days  after  the  com- 
pletion of  the  whole  work,  when  a  final  estimate  was  to  be 
made  of  all  moneys  due  to  the  contractor,  the  same  to  be  paiu 
at  the  next  succeeding  pay  day."  The  work  was  "  to  be  sub- 
ject to  the  inspection  of  the  defendants  by  their  engineer  afore- 
said, and  was  to  be  done  at  such  times  and  in  such  order  as 
the  said  engineer  should  direct."  There  were  also  other  pro- 
visions in  the  contract  upon  which  no  question  arose. 

On  the  hearing  before  the  referees,  the  plaintiff  offered  evi- 
dence as  to  the  amount  and  value  of  the  work  done  under  the 
contract.  The  defendants  objected  to  any  other  evidence  of 
such  amount  and  value  than  the  estimates  of  the  engineer  un- 
der the  contract.  The  referees  admitted  the  evidence,  and  the 
defendants  excepted.  It  was  then  proved  that  the  amount  of 
excavation,  independent  of  hard  pan  and  rock,  was  5416  cubic 
yards.  The  plaintiff  then  offered  evidence  of  the  amount  and 


318  CASES  IN  THE  COURT  OF  APPEALS. 

Sherman  ».  The  Mayor,  &c.  of  New- York. 

value  of  the  hard  pan  and  rock  excavation,  insisting  that  the 
seven  cents  per  cubic  yard  for  "  executing  the  digging,"  &c.  aa 
provided  for  in  the  contract,  did  not  cover  this  species  of  exca- 
vation. The  defendants  objected  to  the  evidence  on  the  ground 
that  the  written  contract  controlled  the  price,  and  did  not  ad- 
mit of  any  other  rate  of  compensation  than  the  seven  cents  per 
cubic  yard.  The  referees  admitted  the  evidence,  and  the  de- 
fendants excepted.  It  was  then  proved,  that  the  amount  of 
hard  pan  excavation  was  5146  cubic  yards  and  12  feet,  and  of 
rock  excavation  491  cubic  yards  and  21  feet ;  that  the  hard 
pan  excavation  was  worth  75  cents  per  yard,  and  the  rock 
$1,00  per  yard.  It  was  also  shown  that  seven  cents  per  yard 
was  the  lowest  price  for  common  earth  excavation.  There  was 
some  evidence  tending  to  show  that  when  the  plaintiff  entered 
into  the  contract,  he  might,  with  ordinary  attention  and  dili- 
gence, have  ascertained  the  character  of  the  ground  to  be 
excavated  ;  and  there  was  also  evidence  tending  to  a  contrary 
result. 

The  referees  reported  in  favor  of  the  plaintiff  the  sum  of 
$4743,43,  which  included  the  above  quantities  of  hard  pan  and 
rock  excavation  at  the  prices  proved.  The  defendants  moved, 
in  the  superior  court,  to  set  aside  the  report,  which  motion  was 
denied,  and  judgment  rendered  for  the  amount  reported  and 
costs.  The  defendants  then  removed  the  cause  by  writ  of  error 
into  the  supreme  court,  where  the  judgment  of  the  superior 
court  was  reversed,  and  a  new  trial  ordered  in  that  court.  The 
plaintiff  brings  error  to  this  court. 

&  Shcncoml,  for  plaintiff  in  error.  The  price  for  "  executing 
the  digging,''  which  means,  according  to  the  popular  sense,  the 
loose  excavation  which  may  be  done  with  a  spade  or  shovel, 
was  seven  cents  per  cubic  yard,  and  was  not  intended,  nor  did 
it  in  fact  include  "rock"  or  "hard  pan,"  the  first  worth  §1,00, 
and  the  latter  75  cents,  per  cubic  yard. 

The  position  taken  by  the  defendants,  that  "  the  engineer1! 
estimate  of  the  amount  and  value  of  the  work  should  be  taken 
instead  of  other  proof,''  cannot  be  sustained,  inasmujh  as  no 


ROCHESTER,  JUNE,  1848.  319 

Sherman  t>.  The  Mayor,  &c.  of  New- York. 

provision  to  that  effect  was  contained  in  the  contract ;  and  es- 
timates were  never  made  satisfactory  to  the  plaintiff,  or  founded 
upon  a  knowledge  of  the  work  by  the  engineers. 

The  objection  that  no  proof  of  the  value  of  hard  pan  or 
rock  excavation  could  be  given  with  a  view  to  compensation, 
on  the  ground  that  the  contract  did  not  admit  of  any  extra  com- 
pensation therefor,  was  not  well  taken. 

The  words,  in  the  instrument,  "  executing  the  digging,"  shows 
the  sense  of  the  parties,  and  refers  to  the  lowest  grade,  or  com- 
mon earth  excavation,  which  only  could  be  done  for  seven  cents 
per  yard. 

It  was  competent  to  show  by  parol  proof,  that  neither  rock 
nor  hard  pan  were  included  in  the  terms  "  executing  the  dig- 
ging," by  showing  the  usage  in  relation  to  the  allowance  for 
either  when  found,  and  by  showing  the  value  of  the  lowest 
grade,  or  earth  excavation,  from  which  the  meaning  of  the 
parties  could  not  be  mistaken. 

Evidence  of  usage,  or  course  of  trade,  where  the  contract  is 
to  be  carried  into  effect,  is  admissible  to  explain  the  meaning, 
and  remove  the  doubt. 

Ambiguous  terms  may  be  explained  by  proving  the  facts  and 
circumstances  tending  to  show  the  sense  in  which  the  terms 
were  used.  (Doe  v.  Hurt,  I  T.  R.  701 ;  Coit  v.  Com.  Ins.  Co. 
7  John.  385  ;  Powell  on  Cont.  378  ;  3  Kenfs  Com.  556  ;  Story 
on  Conf.  of  Laws,  225,  233.) 

Willis  Hall,  for  defendants  in  error.  (1.)  The  testimony 
as  to  the  amount  and  value  of  the  work  done  under  the  con- 
tract was  improperly  admitted,  as  that  was  to  be  paid  for  on 
the  estimate  of  the  engineer  ;  and  he  having  made  a  final  esti- 
mate, the  same  is  conclusive.  (2.)  The  evidence  as  to  the 
value  of  the  hard  pan  and  rock  excavation,  was  improperly 
admitted. 

The  terms  of  the  written  contract  include  excavation  of  ev- 
ery kind,  and  the  price  of  seven  cents  per  cubic  yard  is  stipu- 
lated to  be  "in  full  compensation"  therefor. 

There  is  nothing  in  the  contract  to  indicate  Jiat  the  word 


320  CASES  IN  THE  COURT  OF  APPEALS. 

Sherman  v.  The  Mayor,  &c.  of  New- York. 

"  excavation"  is  used  in  any  special  sense.  The  written  con- 
tract must  therefore  govern  as  to  the  rate  of  compensation  for 
that  labor.  (Robertson  v.  French,  4  East,  135  ;  Delaware  fy 
Hudson  Canal  Co,  v.  Dubois,  15  Wend.  89,  95.) 

(3.)  It  was  the  duty  of  the  contractor  to  have  ascertained  the 
nature  of  the  soil  before  entering  into  the  contract.  Ordinary 
diligence  would  have  enabled  him  to  do  so. 

JEWETT,  Ch.  J.  The  principal  question  in  dispute  between 
the  parties  is,  whether  the  plaintiff  had  a  right  to  show  and 
recover  the  real  value  of  excavating  that  portion  of  the  trench 
composed  of  "  hard  pan,"  or  "  rock."  The  plaintiff  offered 
such  evidence,  which  the  referees  admitted,  although  objected 
to.  The  plaintiff  insists  that  for  excavating  such  portions  of 
the  trench  no  price  was  agreed  upon  between  the  parties,  and 
that  therefore  he  is  entitled  to  show  its  value,  and  recover  ac- 
cordingly ;  that  the  contract  merely  contemplates  and  provides 
for  excavating  common  earth.  The  argument  for  the  plaintiff 
is  founded  upon  the  idea  that  the  term  digging,  as  applied  in 
the  contract,  means  nothing  beyond  removing  common  earth, 
and  does  not  include  hard  pan  or  rock,  or  at  least  the  term  is 
ambiguous  as  applied,  and  therefore  may  be  explained  by  proof 
of  facts  and  circumstances  tending  to  show  the  sense  in  which 
it  was  used  by  the  parties  in  this  contract. 

I  am  unable  to  see  any  ground  for  such  argument.  The 
plaintiff  expressly  contracts  to  furnish  all  the  materials  and 
labor  necessary  to  complete  the  excavation  of  the  trench  in  the 
manner  set  forth,  and  as  a  full  compensation  for  the  excava- 
tion aforesaid — that  is,  for  opening  the  trench  described — it  is 
agreed  that  he  should  be  paid  by  the  defendant,  seven  cents 
per  cubic  yard. 

The  term  "for  executing  the  digging,"  in  the  paragraph 
describing  the  rate  of  compensation,  is  plainly  used  as  synony- 
mous with  the  term  excavation  in  the  paragraph  immediately 
preceding  it,  and  the  same  term  is  used  in  the  specification 
showing  the  manner  in  which  the  work  was  to  be  done. 

It  may  have  been  a  hard  and  ill  advised  contract  on  the  part 


ROCHESTER,  JUNE,  1848.  321 

Spies  ».  Gilmore. 

of  the  plaintiff.  The  substance  to  be  dug  out  to  make  the 
trench,  may  have  been  composed  of  materials  unexpected  by 
him,  rendering  it  worth  tenfold  more  to  do  the  work  than  ha 
expected,  but  that  furnishes  no  valid  ground  to  say  that  the 
digging  contracted  for  was  not  to  be  of  any  other  material 
than  common  earth. 

The  contract,  under  the  head  excavation,  called  for  the 
opening  of  a  trench  of  the  prescribed  width  and  depth,  through 
whatever  substances  should  be  met  with  on  the  line  agreed 
upon  ;  and  full  compensation  for  that  part  of  the  work  is  agreed 
upon  under  the  terms  "  for  executing  the  digging,"  at  the  rate 
of  seven  cents  per  cubic  yard.  Therefore  I  am  of  opinion  that 
the  referees  erred  in  admitting  parol  evidence  of  the  value  of 
that  work.  I  think  it  is  fixed  by  the  written  contract,  which 
must,  in  this  case,  control  the  rate  of  compensation.  An  ob- 
jection was  made  by  the  defendant  that  it  was  not  competent 
for  the  plaintiff  to  prove  the  number  of  yards  excavated,  in  doing 
the  work,  by  any  other  person  than  the  engineer.  It  is  sup- 
posed that  the  parties  have,  by  their  contract,  confined  the  proof 
as  to  the  amount  of  the  work  to  the  estimates  of  the  defendants' 
engineer.  I  do  not  think  that  its  terms  can  receive  such  con- 
struction. The  referees  were  right  therefore  in  admitting  the 
evidence  offered  as  to  the  amount  of  the  work.  I  am  of  opin- 
ion the  judgment  of  the  supreme  court  should  be  affirmed. 

Judgment  affirmed. 


SPIES  vs.  GILMORE  and  others. 

e!9 
Where  a  note,  specifying  no  place  of  payment,  was  made  and  endorsed  in  the  state       21 

of  New-  York,  but  the  maker  and  endorser  resided  in  a  foreign  country,  and  con-     J24 

tinueJ  to  reside  there  when  the  note  fell  due,  their  place  of  residence  being  known       "*  ' 

40 
to  the  payee  and  holder,  both  when  the  note  was  given  and  when  it  matured;       47 

held,  that  presentment  of  the  note  to  the  maker,  demand  of  payment  from  him,       85 
and  notice  to  the  endorser,  were  necessary  in  order  to  charge  the  endorser.  1  58 


VOT     T  41  1K 

VoL-   *• 


4AbD     52 
5  Tr      214 


322     CASES  IN  THE  COURT  OF  APPEALS. 

Spies  v.  Gilmorc. 

F.  being  indebted  to  S.,  in  order  to  obtain  further  time  for  payment,  executed  to  him 
a  note  payable  to  the  order  of  S.  Before  the  note  was  delivered  to  S.,  G.  endorsed 
it.  The  purpose  for  which  the  note  was  made  being  known  to  him,  and  it  being 
part  of  the  arrangement  that  he  should  become  security  for  F.  Held,  that  G.  was 
liable  only  as  endorser,  and  not  as  a  joint  maker,  or  as  a  guarantor. 

The  case  of  Hall  v.  Newcomb,  in  error,  (7  Hill,  416,)  referred  to,  and  the  doctrine 
there  established,  reaffirmed. 

ON  error  from  the  supreme  court.  Adam  W.  Spies  sued 
Robert  Gilmore,  John  Jewett  and  George  W.  Jewett,  in  the 
superior  court  of  the  city  of  New-York,  upon  a  bond  given  in  a 
proceeding  by  attachment  instituted  by  Spies  against  Gilmore 
as  a  non-resident  debtor.  The  bond  bore  date  October  20th, 
1841,  and  was  executed  by  Gilmore  as  principal,  and  by  the 
other  defendants  as  his  sureties.  The  condition  of  the  bond 
was  such,  that  the  plaintiff's  right  to  recover  depended  upon 
the  question  whether,  at  the  time  the  proceeding  was  instituted, 
he  was  a  creditor  of  the  said  Gilmore,  and  the  facts  relating  to 
that  question,  as  proved  on  the  trial,  were  as  follows  :  On  the 
16th  of  September,  1835,  one  John  Furlong  executed  to  the 
plaintiff  his  promissory  note,  as  follows : 

«  $530,07.  New- York,  Sept.  16,  1835. 

Six  months  after  date,  I  promise  to  pay  to  the  order  of  Mr. 
Adam  W.  Spies  five  hundred  and  thirty  T°57o  dollars,  value 
received.  JOHN  FURLONG." 

The  defendant  Robert  Gilmore  was  the  first  and  only  en- 
dorser on  this  note.  At  the  time  the  note  was  given,  Furlong 
was  indebted  to  the  plaintiff  in  the  amount  thereof  for  goods 
sold  to  him  by  the  plaintiff,  at  a  credit  of  six  months,  which 
had  expired.  Furlong  applied  for  a  further  credit  of  six 
months,  and  proposed  to  give  the  defendant  Gilmore  as  secu- 
rity. The  plaintiff  agreed  to  the  proposal.  This  arrangement 
took  place  in  the  presence  of  Gilmorc,  and  in  pursuance  thereof 
Furlong  executed  and  Gilmore  endorsed  the  above  note.  The 
note  was  made  and  endorsed  in  the  city  of  New- York,  but  both 
the  maker  and  endorser  then  resided  at  Matamoras,  in  Mexico, 
and  continued  to  reside  there  when  it  came  to  maturity ;  and 
their  residence  was  known  to  the  plaintiff.  There  was  some 


ROCHESTER,  JUNE,  1848.  333 


Spies  r.  Gilmore. 


evidence  tending  to  show  that  when  the  note  fell  due  the 
plaintiff  wrote  to  the  maker  and  endorser  at  Matamoras,  stating 
the  non-payment  of  the  note,  and  requesting  payment,  but 
there  was  no  evidence  that  the  note  was  presented  to  the  maker 
or  any  other  demand  made  upon  him  than  by  the  letter  aforesaid. 
The  superior  court  ruled,  and  so  charged  the  jury,  that  under 
the  circumstances  of  the  case,  as  they  appeared  in  the  evidence, 
no  demand  and  notice  were  necessary  to  enable  the  plaintiff  to 
sustain  the  action.  The  defendants  excepted.  A  verdict  and 
judgment  for  the  plaintiff  were  had  in  the  superior  court.  The 
supreme  court,  on  writ  of  error,  reversed  such  judgment.  (See 
\  Harbour's  Sup.  Court  Rep.  158.)  And  from  the  decision 
last  mentioned  the  plaintiff  brings  error  to  this  court. 

Charles  O'Conor,  for  the  plaintiff  in  error.  Furlong  the 
maker,  and  Gilmore  the  endorser,  having  been  both  residents 
of  Mexico,  a  foreign  country,  at  the  maturity  of  the  note,  the 
plaintiff  was  entitled  to  recover  without  evidence  of  demand 
or  notice.  (2  Burr.  1077 ;  Brown  v.  Harraden,  4  T.  R.  148 ; 

1  R.  S.  768,  §  1 ;   Chitty  on  Bills,  400,  485,  note  e,  8th  Am.  ed. ; 
Magrudcr  v.  Bank  of  Washington,  9  Wheat.  598  ;  Anderson 
v.  Drake,  14  John.  117 ;  Hepburn  v.  Toledano,  10  Mart.  643 ; 
Story  on  Prom.  Notes,  §  236  ;    1  Dev.  Law  R.  247 ;    Taylor 
v.  Snyder,  3  Denio,  151  ;    20  John.  102 ;    1  id.  94 ;    7  T.  R. 
242  ;   Co.  Lift.  210,  B.  ;  3  Cov.  Powell  on  Mort.  939,  note  u.  ; 

2  Smedes  fy  Marsh.  553  ;    8  N.  Hamp.  Rep.  413  ;   20  Maine 
Rep.  325;    1   Bingh.  N.  C.  151;    Consequa  v.  Fanning,  3 
John.  C/i.   Rep.  588;    17  John.  518;    Cox  et  al.  v.  United 
States,  6  Peters,  203  ;    Story's  Coiift.  Laws,  §  280  ;   Buckner 
v.  Finley,  2  Peters,  590 ;    ib.  179,  App.  2.) 

The  note  ought  to  be  held  binding  upon  Gilmore  as  the 
joint  and  several  note  of  himself  and  Furlong,  or  as  a  guaranty 
(Hall  v.  Newcomb,  3  Hill,  234,  S.  C.  in  error,  7  id.  420  • 
fjabron  v.  Woram,  1  id.  93 ;  2  id.  84 ;  4  id.  421 ;  Dean  v 
Hall,  17  Wend.  217.) 

A.  Crist,  for  the  defendant  in  error. 


324     CASES  IN  THE  COURT  OF  APPEALS. 

Spies  v.  Gilmore. 

BRONSON,  J.  There  are  a  few  cases  in  the  books  which 
hold,  in  effect,  that  a  written  contract  of  one  kind  may  be 
turned  into  a  contract  of  a  different  kind,  by  parol  proof  con- 
cerning the  intention  of  the  parties ;  that  the  endorser  of  a 
promissory  note  may,  under  certain  circumstances,  be  charged 
as  maker  or  guarantor ;  and  that  the  guarantor  of  a  promissory 
note  may  sometimes  be  charged  as  maker  or  endorser.  Al- 
though these  cases  stand  upon  no  principle,  it  has  been  a  work 
of  some  time  and  difficulty  to  get  rid  of  them.  The  court  of 
errors  was  at  first  equally  divided  on  the  question ;  but  after  a 
second  argument  the  court  decided  by  a  pretty  strong  vote  to 
uphold  contracts  as  they  had  been  made  by  the  parties,  instead 
of  making  new  contracts  for  them.  (Hall  v.  Newcomb,  3  Hill, 
233,  and  7  id.  416,  S.  C.  in  error,  and  note,  p.  426  ;  Seabury 
v.  Hungerford,  2  id.  80  ;  Manrow  v.  Dunham,  3  id.  587,  per 
Bronson,  J.}  The  work  was  not  completed  until  after  this 
proceeding  had  been  commenced,  and  the  case  had  been  dis- 
posed of  in  the  superior  court.  It  is  evident  from  the  declara- 
tion that  the  plaintiff  expected  to  recover  on  the  ground  that 
Gilmore  might  be  charged  as  maker  or  guarantor.  But  the 
court  of  errors  having  overturned  that  doctrine,  the  plaintiff" 
now  seeks  to  uphold  the  judgment  on  another  ground.  He 
insists  that  as  Furlong,  the  maker,  lived  at  Matamoras,  out  of 
this  state,  and  out  of  the  United  States,  at  the  time  the  note 
fell  due,  no  demand  of  payment  from  the  maker,  nor  notice  of 
non-payment,  was  necessary  for  the  purpose  of  charging  Gil- 
more  as  endorser.  No  such  exception  to  the  general  rule,  which 
requires  demand  and  notice,  has  ever  been  sanctioned  by  the 
courts;  and  Taylor  v.  Snyder,  (3  Denio,  145,)  is  a  case  in 
point  against  the  plaintiff.  It  is  not  pretended  that  the  maker 
had  absconded,  or  removed  out  of  the  state,  after  the  note  was 
made ;  nor  that  there  had  been  any  other  change  of  circum- 
stances to  excuse  the  want  of  a  demand.  So  far  as  appeared 
on  the  trial,  the  maker  still  continued  to  reside  at  Matamoras', 
in  Mexico,  where  he  resided  when  the  note  was  given,  as  the 
plaintiff  well  knew.  The  only  excuse  which  has  been  offered 
for  not  making  demand  is,  that  it  would  have  been  incon- 


ROCHESTER,  JUNE,  1848.  325 

Spies  v.  Gilmorc. 

venient  to  go  or  send  to  Matamoras  for  that  purpose.  It  is 
often  inconvenient  to  present  the  note  for  payment  when  the 
maker  and  holder  both  reside  in  the  same  state ;  and  yet  when 
the  maker  has  a  known  place  of  residence,  and  there  has  been 
no  change  of  circumstances  after  the  giving  of  the  note,  mere 
trouble  or  inconvenience  to  tl^e  holder  has  never  been  held  a 
good  excuse  for  omitting  the  demand.  And  this  is  so,  however 
wide  asunder  the  maker  and  the  holder  may  live.  If  the 
plaintiff  wished  to  avoid  the  inconvenience  of  sending  to  Mata- 
moras, he  should  have  made  the  note  payable  in  New-York,  or 
got  an  endorsement  with  a  waiver  of  demand.  He  has  no 
right  to  change  the  contract  which  the  endorser  made,  for  the 
purpose  of  promoting  his  own  convenience. 

If  the  demand  could  be  dispensed  with,  the  endorser  was 
still  entitled  to  notice  of  the  default  of  the  maker,  and  that  the 
holder  looked  to  the  endorser  for  payment ;  and  there  is  no 
color  of  excuse  for  omitting  to  give  notice.  The  giving  of  it 
would  have  cost  the  plaintiff  no  trouble,  beyond  sending  a  letter 
by  the  next  ship  which  sailed  for  Matamoras,  where  the  en- 
dorser lived.  The  plaintiff  attempted  to  prove  that  this  was 
done ;  but  there  was  a  defect  in  the  evidence.  If  there  had 
been  proof  enough  to  carry  the  cause  to  the  jury  on  that  point, 
it  would  not  aid  the  plaintiff;  for  the  question  was  not  left  to 
the  jury.  The  judge  instructed  them  that  neither  demand  nor 
notice  was  required  by  law  to  entitle  the  plaintiff  to  his  action. 
The  truth  evidently  is,  that  the  cause  was  tried  upon  the  doc- 
trine which  has  since  been  finally  exploded,  that  Gilmore  might 
be  charged  as  maker  or  guarantor  of  the  note.  He  was  in  fact 
endorser,  and  nothing  else ;  and  as  such  he  was  entitled  to 
notice 

I  am  of  opinion,  upon  both  grounds,  that  the  reversal  by  the 
supreme  court  (1  Barb.  158)  was  correct,  and  that  their  judg- 
ment should  be  affirmed. 

JEWETT,  Ch.  J.  The  case  of  Hall  v.  Newcomb,  (7  Hill,  416,) 
is  in  point  to  show  that  Gilmore  cannot  be  made  liable  to  Spies, 
as  guarantor  or  maker  of  the  note.  The  material  question 


326  CASES  IN  THE  COURT  OF  APPEALS. 


Spies  r.  Gilraorc. 


then  is,  Was  there  proof  given  on  the  trial,  sufficient  to  charge 
him  as  endorser  ?  The  evidence  showed  that  both  the  maker 
and  endorser  at  the  time  of  making  and  endorsing  the  note,  as 
tte.i  as  at  the  time  of  its  maturity,  were  residents  of  and  doing 
business  at  Matamoras  in  Mexico,  and  that  these  facts  were 
known  to  Spies,  who  at  the  same  time  resided  in  New- York, 
where  the  note  was  drawn,  dated  and  endorsed.  There  was 
no  evidence  given  to  show  either  a  demand  of  payment  of  the 
maker,  at  maturity,  and  notice  of  non-payment  to  the  endorser, 
or  of  any  facts  constituting  an  excuse  for  omitting  to  make  such 
demand,  or  any  efforts  to  make  it  and  give  such  notice,  other 
than  to  show  the  residence  of  the  maker  and  endorser  to  have 
been  in  Mexico,  a  foreign  country.  It  is  insisted  in  behalf  of 
the  plaintiff,  that  upon  that  ground  the  law  excuses  any  demand 
and  notice.  The  general  rule  of  law  is,  that  when  a  promissory 
note  is  not  made  payable  at  any  particular  place,  in  order  to 
charge  the  endorser,  payment  must  be  demanded  of  the  maker 
personally,  or  at  his  dwelling  house,  or  other  place  of  abode,  or 
at  his  counting  house  or  place  of  business.  The  note  in  ques- 
tion is  not  made  payable  at  any  particular  place.  There  are, 
however,  exceptions  to  this  general  rule,  by  which  any  demand 
is  dispensed  with.  It  is  a  question  of  diligence,  and  if  a  demand 
is  found  to  be  impracticable,  proper  efforts  for  that  purpose 
having  been  made,  the  endorser  will  still  be  held  liable,  due 
notice  having  been  given  to  him  by  the  holder.  These  excep- 
tions are  enumerated  in  the  opinion  of  the  court  delivered  by 
Mr.  Justice  Beardsley  in  Taylor  v.  Snyder,  (3  Dcnio,  151.) 
and  embrace  cases  under  the  following  circumstances  :  1.  When 
the  maker  has  absconded,  that  will  ordinarily  excuse  a  de- 
mand ;  and  notice  of  the -fact  is  sufficient  to  hold  the  endorser. 
2.  When  the  maker  is  a  seaman  on  a  voyage,  having  no  domi- 
cil  in  the  state,  the  endorser  is  liable  without  a  demand  being 
made  ;  out  if  he  has  a  domicil  in  this  state,  although  he  be  ab- 
sent, on  a  voyage,  payment  must  be  demanded  there.  3.  Where 
the  maker  has  no  known  residence  or  place  at  which  the  note 
can  be  presented  for  payment.  4.  Where  a  note  is  made  by  a 
resident  of  the  state,  who,  before  it  is  payable,  removes  from  the 


ROCHESTER,  JUNE,  1348.  327 

Spies  v.  Gilmore. 

state  and  takes  up  a  permanent  residence  elsewhere,  the  holdei 
need  not  follow  him  to  make  demand,  but  it  is  sufficient  to  pre- 
sent the  note  for  payment  at  the  former  place  of  residence  of 
the  maker. 

These  exceptions  to  the  general  rule,  as  Judge  Beardsley  re- 
marked, it  will  be  seen,  all  rest  on  peculiar  reasons.  In  the 
first,  the  maker  has  absconded  ;  in  the  second,  he  is  tempora- 
rily absent,  and  has  no  domicil  or  place  of  business  within  the 
state ;  in  the  third,  his  residence,  if  any  he  has,  cannot  be 
ascertained ;  while  in  the  fourth,  he  has  removed  out  of  the 
state  and  taken  up  his  residence  in  another  country.  In  each 
of  these  instances,  let  it  be  observed,  the  fact  constituting  the 
excuse,  occurs  subsequently  to  the  making  and  endorsement  of 
the  note ;  and  it  is  this  new  and  changed  condition  of  the  ma- 
ker, and  that  only,  by  which  the  endorser  stands  committed, 
without  a  regular  demand.  And  this  is  just :  for  it  is  but  rea- 
sonable to  suppose  that  neither  party,  when  the  note  was  given, 
looked  for  this  new  and  changed  condition  of  the  maker,  and 
that  each  contracted  upon  the  supposition  that  no  such  change 
would  take  place. 

It  is  obvious  that  the  case  at  bar  is  not  within  either  excep- 
tion to  the  general  rule  dispensing  with  a  demand  and  notice. 
No  change  in  the  condition  of  either  party  has  taken  place 
since  the  note  was  made  and  endorsed.  The  maker  and  en- 
dorser, I  repeat,  respectively  had  a  residence  in  Mexico  at  the 
time  the  note  was  made  in  New-York,  which  remained  un- 
changed at  the  maturity  of  the  note,  and  which  was  known  to 
the  plaintiff  at  each  period  of  time.  If  the  exception  now  in- 
sisted upon  is  made,  it  must  rest  upon  some  principle  not  hith- 
erto recognized  by  any  rule  of  law,  as  I  think  is  abundantly 
shown  by  the  opinion  in  the  case  to  which  I  have  referred. 

I  cannot  assent  to  the  truth  of  the  position  assumed,  that  be- 
cause the  maker  and  endorser  of  a  promissory  note  at  the  time 
of  the  making  and  endorsing  reside  in  another  state  or  foreign 
country,  the  endorser  may  be  held  liable  without  any  demand 
being  made  on  the  maker  ;  especially  when  such  residence  was 
known  to  the  holder  at  the  time  the  note  was  made  and  has 


328     CASES  IN  THE  COURT  OF  APPEALo. 

Spies  v.  Gilaiorc. 

not  been  changed  before  the  maturity  of  it.  And  in  this  there 
is  no  injustice :  for  it  is  but  reasonable  to  conclude  that  each 
party  contracted  upon  the  supposition  that  the  holder  should 
make  a  demand  of  payment  on  the  maker  at  maturity,  at  the 
place  of  his  residence,  and  if  not  paid  give  notice  to  the  endorser, 
or  else  a  place  as  well  as  time  of  payment  would  be  stipulated 
for  in  the  note  itself.  To  hold  that  a  demand  and  notice  can 
be  dispensed  with  on  the  ground  that  the  maker  and  endorser 
resided  in  a  foreign  country  at  the  time  of  the  making  and  ma- 
turity of  the  note,  would,  in  my  judgment,  be  nothing  short  of 
judicially  changing  the  terms  and  legal  effect  of  the  contract 
between  these  parties.  I  think  the  judgment  of  the  supreme 
court  should  be  affirmed. 

GARDINER,  J.  dissenting.  I  cannot  assent  to  the  opinion, 
that  a  demand  of  the  maker  was  necessary  in  this  case.  By 
his  endorsement,  the  defendant  contracted  that  if  the  note  was 
duly  demanded  of  the  maker  and  not  paid,  or  if  after  the  exer- 
cise of  due  diligence  no  such  demand  could  be  made,  he  would 
on  receiving  due  notice  pay  the  amount  to  the  endorsee  or 
holder.  (14  John.  1 17.)  The  question  is  whether  due  diligence 
required  that  a  demand  should  be  made  of  the  maker,  under 
the  circumstances  disclosed  by  the  evidence. 

In  Anderson  v.  Drake,  (14  John.  114,)  it  was  held  that 
where  the  note  is  not  payable  at  a  particular  place,  and  the 
maker  has  a  known  and  permanent  residence  within  the  state, 
the  holder  is  bound  to  make  demand  at  such  residence.  The 
rule  applies  where  there  has  been  a  change  of  residence  by  the 
drawer  subsequent  to  the  making  the  note,  as  well  as  to  other 
cases.  In  McGruder  v.  Bank  of  Washington.  (9  Wheat.  001.) 
it  was  decided  that  where  the  maker  of  a  note  had  removed 
into  another  state  subsequent  to  the  making,  no  demand  was 
necessary.  So  also  in  Anderson  v.  Drake,  (snpra,  117,)  and  in 
Taylor  v.  Knydcr,  (3  Denio,  146.)  Justice  Beardsley,  in  deliv- 
ering the  opinion  of  the  court,  after  a  very  able  review  of  all 
the  cases,  came  to  the  conclusion  that  demand  and  notice  must 
be  given  where  the  drawer  of  the  note  at  the  time  of  the  making 


ROCHESTER,  JUNE,  1848.  339 

Spies  v.  Gilmore. 

and  when  it  fell  due,  had  a  known  residence  in  one  of  the  United 
States — the  payee  residing  and  the  note  being  given  in  this  state. 

The  question  is  now  presented  in  a  new  form,  whether  the 
payee,  in  the  exercise  of  due  diligence,  is  required  to  follow  the 
maker  to  a  foreign  country  in  order  to  make  a  demand. 

If  the  legal  effect  of  the  contract  of  the  endorser  is  as  stated 
by  the  learned  judge  in  tSnyder  v.  Taylor,  namely,  that  it  re- 
quires a  demand  except  in  those  cases  where  it  "  shall  be  found 
impracticable,"  the  plaintiff  was  not  excused  in  this  instance, 
since  it  was  possible  to  have  demanded  payment  of  the  maker 
when  the  note  matured.  But  I  apprehend  that  this  is  stating 
the  condition  of  the  endorser's  liability  a  little  too  broadly.  In 
McGruder  v.  Bank  of  Washingtoji^  it  was  neither  impossible 
or  inconvenient  to  have  demanded  payment,  as  the  maker  lived, 
after  his  removal  from  the  district  of  Columbia  to  the  state  of 
Maryland,  only  nine  miles  from  the  holder.  The  court  deter- 
mined, as  matter  of  law,  that  due  diligence  did  not  require  a 
demand  under  such  circumstances.  They  say,  "  on  this  point 
there  is  no  other  rule  that  can  be  laid  down  which  will  not 
leave  too  much  latitude  as  to  place  and  distance."  The  rule 
was  adopted  as  a  rule  of  convenience,  and  not  on  account  of  its 
abstract  justice.  The  reasoning  of  the  court  is  applicable  to 
the  case  before  us.  In  the  absence  of  direct  authority,  we  are 
called  upon  not  to  make  a  new  exception  to  the  general  rule, 
but  to  apply  that  rule  to  a  new  class  of  cases.  Expediency, 
public  convenience,  it  seems  to  me,  require  that  the  necessity  of 
a  personal  demand  should  be  confined  to  cases  where  the  ma- 
ker resides  within  the  states  or  territories  of  the  Union.  It  is 
difficult  to  prescribe  any  other  rule  which  will  not  leave  "  too 
much  latitude  as  to  place  and  distance,"  and  of  course  be  fluc- 
tuating when  it  should  be  certain.  Instances  will  readily  occur 
to  every  one,  in  which  the  making  of  a  demand  in  a  foreign 
country  would  be  attended  with  little  inconvenience,  and  others 
in  which  it  would  be  impracticable.  Between  these  extremes 
there  is  a  wide  interval  which  would  be  opened  to  litigation, 
which  sound  policy  requires  to  be  closed.  The  case  of  Hepburn 
v.  Toledano,  (10  Martin's  JR.  643,)  and  the  remarks  of  Judge 

VOL.  I.  42 


330  CASES  IN  THE  COURT  OF  APPEALS. 

Noble  V.  Ilalliday. 

Story  in  his  treatise,  are  opposed  to  the  extension  of  the  privi- 
lege of  an  endorser  further  than  they  have  been  carried  in 
Snyder  v.  Taylor,  even  if  the  criticism  of  Judge  Beardsley  upon 
that  case  is  in  all  respects  correct.  Looking  then  to  the  nature 
of  the  instrument  in  question,  as  essentially  domestic  in  its  ori- 
gin and  uses ;  to  public  convenience,  which  demands  certainty 
in  the  general- rule,  rather  than  strict  equity  in  special  cases  ; 
and  to  the  extent  of  the  country  under  the  government  of  the 
United  States,  I  have  come  to  the  conclusion  that  no  demand 
was  necessary  in  this  case  in  order  to  charge  the  endorser. 

Judgment  affirmed. 


NOBLE  and  others  vs.  HALLIDAY. 
330 


K      '515 


By  statute  (2  R.  S.  464,  §§  41,  42 ;  id.  469,  §§  67,  68,  72  ;  id.  43,  §  12)  whenever  a 
receiver  of  an  insolvent  corporation  "  shall  shmo  bij  his  own  oath  or  other  competent 
proof"  that  any  person  is  indebted  to  the  corporalion,  or  has  property  of  the  cor- 
poration in  his  custody  or  possession,  the  officer  to  whom  the  application  is  made 
shall  issue  a  warrant  to  bring  such  person  before  him  for  examination.  Under 
this  statute  it  is  sufficient  for  the  receiver,  who  applies  for  a  warrant,  to  swear  to 
the  facts  on  information  and  belief. 

Accordingly,  where  the  receiver  of  an  insolvent  corporation  applied  for  a  warrant 
under  the  above  statute,  and  showed  the  facts  only  by  his  own  oath  on  his  infor- 
mation and  belief,  and  a  warrant  was  issued  upon  which  the  person  proceeded 
against  was  taken  and  brought  before  the  officer ;  heltl,  in  an  action  brought  by 
such  person  against  the  receiver  and  others  acting  under  the  warrant  for  an  assault 
and  battery  and  false  imprisonment,  that  the  warrant  was  a  good  justification. 

Under  the  above  statute,  a  person  having  in  his  custody,  as  administrator  of  a  de- 
ceased person,  effects  of  the  corporation,  or  indebted  as  such  administrator,  is  liable 
to  be  proceeded  against  ;  and  where  the  sworn  petition,  on  which  the  warrant  was 
granted,  stated  that  such  person  had  property  of  the  corporation  in  his  custody, 
either  individually  or  as  administrator,  &c.  held  good. 

ON  error  from  the  supreme  court.  Ilalliday  sued  Noble,  Liv- 
ingston and  Lamberson,  in  the  superior  court  of  the  city  of 
New- York,  for  an  assault  and  battery  and  false  imprisonment. 
On  the  20th  of  July,  1811,  Noble,  one  of  the  defendants,  was 
appointed  by  the  court  of  chancery  receiver  of  the  property  and 


ROCHESTER,  JUNE,  1848.  33] 

Noble  V.  Halliday. 

effects  of  The  New- York  Northern  Fire  Insurance  Company. 
On  the  24th  of  November,  1841,  Noble,  as  such  receiver,  pre- 
sented a  petition  to  the  recorder  of  the  city  of  New- York,  and 
obtained  from  that  officer  a  warrant  directed  to  the  sheriff  of 
that  city  and  county,  commanding  him  to  bring  the  plaintiff 
before  the  recorder  for  the  purpose  of  being  examined.  The 
warrant  was  duly  served  and  the  plaintiff  held  in  custody 
under  it ;  and  that  was  the  assault.  &c.  for  which  the  action 
was  brought.  The  question  presented  by  the  pleadings,  on 
demurrer,  was,  whether  the  petition  and  oath  annexed  thereto, 
on  which  the  warrant  issued,  were  sufficient  to  authorize  the 
issuing  of  such  warrant.  The  principal  facts  required  to  be 
shown  to  the  officer,  were  stated  and  sworn  to  on  the  informa- 
tion and  belief  merely  of  the  petitioner.  That  was  one  objec- 
tion to  the  validity  of  the  proceeding.  Another  was,  that  the 
petition  stated  that  the  plaintiff  Halliday,  either  individually  or 
as  administrator  with  the  will  annexed,  of  Robert  Halliday 
deceased,  (without  stating  which,)  had  in  his  hands  and  custo- 
dy property  and  money  which  belonged  to  the  petitioner  as 
such  receiver;  and  it  was  insisted  for  the  plaintiff  that  he  was 
not  liable  under  the  statute  to  be  proceeded  against  as  an  ad- 
ministrator, and  therefore  that  the  petition  being  in  the  alterna- 
tive did  not  give  the  officer  jurisdiction.  The  superior  court 
gave  judgment  against  the  plaintiff;  which,  on  error,  was 
reversed  by  the  supreme  court.  (1  Barb.  Sup.  Court  Rep.  137.) 
The  defendants  bring  error  into  this  court.  The  statutes  de- 
nning the  powers  of  Noble  as  such  receiver,  and  under  which 
the  proceeding  in  question  was  instituted,  are  material  to  a 
proper  understanding  of  the  case  ;  and  these  are  sufficiently  set 
forth  in  the  opinion  of  RUGGLES,  J. 

L.  Livingston,  for  plaintiffs  in  error. 
E.  Sandford,  for  defendant  in  error. 

RUGGLES,  J.     The  question  raised  by  the  pleadings  in  this 
case  is,  whether  the  petition  presented  by  Noble,  the  receiver  oi 


332  CASES  IN  THE  COURT  OF  APPEALS 

Noble  v.  Halliday. 


The  New- York  Northern  Insurance  Company,  verified  by  his 
own  oath  as  to  the  principal  facts,  on  his  information  and  be- 
lief, was  sufficient  to  give  the  recorder  jurisdiction  to  issue  the 
warrant.  If  it  was,  the  arrest  of  Halliday  was  legal,  and  his 
action,  founded  on  the  supposed  illegality  of  the  arrest,  must  fail. 

The  legality  of  the  warrant  is  here  drawn  in  question  in  a 
collateral  action  ;  and  for  the  purpose  of  maintaining  the  action 
it  is  necessary  to  show  not  merely  that  the  recorder's  decision 
:n  granting  the  warrant  was  erroneous,  but  that  it  was  abso- 
lutely void. 

The  authority  of  the  receiver  to  apply  for  and  obtain  the 
warrant  against  Halliday  will  be  found  in  the  following  sections 
of  the  revised  statutes,  by  which  the  receiver  of  insolvent  cor- 
porations is  charged  with  like  duties  and  clothed  with  the  same 
powers  as  are  by  another  section  given  to  trustees  and  assignees 
in  cases  of  insolvency.  (2  R.  IS.  464,  §§  41,  42  ;  id.  469,  §§  67, 
68,  72 ;  id.  35,  §  1.)  The  nature  and  extent  of  the  powers  and 
duties  of  trustees  of  insolvent  debtors  will  appear  by  2  R.  S.  40, 
41,  42,  §§  6,  8,  12.  The  latter  section  is  that  under  which  the 
warrant  issued.  It  is  as  follows  : 

':  §  12.  Whenever  the  trustees  shall  show  by  their  own  oath 
-jr  other  competent  proof,  to  the  satisfaction  of  any  officer  named 
in  the  first  section  of  the  seventh  article  of  this  title,  or  of  any 
judge  of  a  county  court,  that  there  is  good  reason  to  believe 
that  the  debtor,  his  wife,  or  any  other  person,  has  concealed  or 
embezzled  any  part  of  the  estate  of  such  debtor,  vested  in  the 
said  trustees ;  or  that  any  person  can  testify  concerning  tin; 
concealment  or  embezzlement  thereof ;  or  that  any  person  who 
shall  not  have  rendered  an  account  as  above  required,  is  in- 
debted to  such  debtor,  or  has  property  in  his  custody  or  pos- 
session, belonging  to  such  debtor;  such  officer  or  judge  shall 
issue  a  warrant,  commanding  any  sheriff  or  constable  to  causo 
such  debtor,  his  wife,  or  other  person,  to  be  brought  before  him 
at  such  time  and  place  as  he  shall  appoint  for  the  purpose  of 
being  examined." 

Upon  a  careful  examination  of  the  case  I  am  satisfied  that 
the  judgment  of  the  supreme  court  was  erroneous ;  and  that  the 


ROCHESTER,  JUNE,  1848.  333 

Noble  v.  Halliday. 

error  arose  mainly  from  a  misconception  of  the  nature  of  the 
proceeding  against  Halliday.  It  was  in  substance  a  proceeding 
to  obtain  his  testimony  as  a  witness,  and  not  a  proceeding 
against  him  as  a  party  for  relief  by  judgment  or  decree.  It  is 
true  he  was  an  interested  witness  and  was  called  to  testify 
against  his  interest,  and  in  that  respect  he  stands  in  the  situa- 
tion of  a  defendant  in  a  bill  of  discovery,  where  the  sole  object 
of  the  proceeding  is  to  obtain  the  defendant's  evidence  under 
oath.  The  proceeding  authorized  by  the  statute  appears  to 
have  been  intended  as  an  informal,  but  prompt  and  effective 
substitute  for  the  tedious  and  expensive  process  on  a  bill  of 
discovery  in  a  court  of  equity.  The  necessity  and  utility  of 
the  proceeding  are  too  obvious  to  require  elucidation.  The 
property  of  an  insolvent  corporation  is  usually  in  the  hands  of 
the  officers  and  agents  under  whose  management  it  has  become 
insolvent.  They  are  frequently  its  largest  debtors ;  and  the 
power  of  compelling  them  and  all  others  to  disclose  its  condi- 
tion, and  of  ascertaining  by  that  means  where  its  property  is, 
in  whose  hands,  under  what  claim  or  pretence  it  is  held,  and 
who  are  its  debtors,  is  indispensable  to  the  interest  of  its  cred- 
itors for  whose  benefit  it  is  to  be  collected  and  distributed  by  the 
receiver. 

It  seems  to  have  been  supposed  that  an  executor  or  adminis- 
trator cannot  be  called  upon  to  testify,  under  this  statute,  in 
relation  to  a  debt  due  from  his  testator  or  intestate,  or  in  rela- 
tion to  property  in  his  hands  claimed  in  his  representative  ca- 
pacity. I  am  at  a  loss  to  know  whence  that  idea  could  have 
arisen.  Certainly  not  from  the  statute  itself.  If  the  adminis- 
trator have  in  his  custody  and  possession  property  belonging  to 
the  corporation,  it  is  immaterial  by  what  right  he  claims  it.  He 
is  bound  to  testify  in  relation  to  it.  And  if  as  administrator  he 
is  indebted  to  the  corporation,  there  is  nothing  in  the  statute  to 
excuse  him  from  disclosing,  under  oath,  what  he  knows  in  re- 
lation to  such  indebtedness.  Such  a  case  is  embraced  within 
the  general  terms  of  the  12th  and  13th  sections  of  the  statute. 

The  cases  of  Jackson  v.  Walsworth,  (1  John.  Cas.  362,)  and 
Hinds'  case,  (9  Wend.  465,)  have  no  application  to  this  pro- 


334  CASES  IN  THE  COURT  OF  APPEALS. 

Noble  r.  Ilalliday. 

ceeding  for  discovery.  Those  cases  relate  to  attachments 
against  the  property  of  an  absconding  debtor  under  2  R.  S.  3,  4. 
Proceedings  under  that  statute  have  no  resemblance  or  similar- 
ity to  the  proceedings  against  the  debtor  of  an  absconding 
debtor  to  compel  him  to  testify.  To  authorize  an  attachment 
against  an  absconding  debtor,  the  creditor  must,  by  the  express 
terms  of  the  statute,  have  a  demand  against  him  personally. 
(2  R.  S.  3,  §  3.)  But  the  power  to  examine  those  who  have 
his  property,  or  who  owe  him  money,  is  not  thus  limited.  The 
statute  would  be  exceedingly  defective  if  it  exempted  those  who 
owe  in  a  representative  capacity  from  liability  to  answer  like  all 
others  as  to  their  indebtedness.  Executors  and  administrators 
are  not  thus  exempted  upon  a  bill  in  equity  for  a  discovery,  and 
the  power  under  the  statute  to  call  for  a  disclosure  is  as  ample 
as  under  such  a  bill.  The  receiver  therefore  was  right  in  call- 
ing on  Halliday  to  testify  in  relation  to  property  that  he  held, 
or  money  that  he  owed  the  corporation  as  administrator  with 
the  will  annexed  of  a  deceased  person.  In  that  character  he 
was  liable  to  an  action  at  law  by  the  receiver  ;  and  the  power 
of  discovery  was  undoubtedly  intended  to  be  co-extensive  with 
the  right  to  sue. 

It  constitutes  no  good  objection  to  the  petition  for  the  war- 
rant, that  the  grounds  on  which  it  was  demanded  were  stated 
in  the  alternative.  If  it  had  been  a  declaration  in  a  suit  at 
law,  or  an  indictment,  or  a  proceeding  under  the  act  to  abolish 
imprisonment  for  debt,  by  which  Halliday  might  have  been 
committed  to  jail  until  he  paid  a  debt,  the  objection  would  have 
been  a  good  one.  In  these  cases  the  plaintiff,  or  party  prose- 
cuting, is  supposed  to  know  the  ground  of  his  proceeding  ;  and 
he  is  bound  to  state  it  with  precision,  in  order  that  the  defen- 
dant may  know  what  he  is  to  controvert ;  for  he  controverts  at 
the  peril  of  his  property  or  his  liberty.  But  this  was  a  proceed- 
ing of  a  different  character.  The  object  was  inquiry,  and  nothing 
else ;  and  the  receiver  could  not  be  required  to  state  positively 
facts  which  he  did  not  know,  and  which  he  could  not  be  supposed 
to  know  until  the  inquiry  should  be  answered.  In  bills  of  dis- 
covery the  complainant's  allegations  are  usually  stated  in  the 


ROCHESTER,  JUNE,  1848.  335 

Noble  v.  Halliday. 

alternative.  They  are  so  stated  in  judgment  creditors'  bills, 
and  in  others  of  the  like  nature,  although  relief  as  well  as  dis- 
covery is  sought.  No  hardship  was  imposed  on  Mr.  Halliday 
in  compelling  him  to  answer  allegations  thus  stated.  Nor  ia 
there  any  just  objection  on  his  part  to  the  discovery,  at  the  same 
time,  of  matters  which  might  affect  him  individually,  and  of 
others  which  might  affect  him  in  a  representative  capacity. 
The  statute  authorizes  an  informal  discovery ;  and  it  is  much 
better  that  it  should  all  be  done  at  one  time  and  under  the  same 
process,  than  to  have  two  distinct  applications  and  warrants. 

The  remaining  question  as  to  the  sufficiency  of  the  petition 
is,  whether  the  facts  set  forth  in  it  were  properly  verified.  It 
was  sworn  to  by  Noble,  in  the  form  heretofore  prescribed  in 
the  court  of  chancery  for  the  verification  of  bills  of  discovery, 
that  is  to  say,  as  to  the  principal  facts  on  his  information  and 
belief.  In  determining  this  question  the  statute  under  which 
the  warrant  issued  must  be  our  guide.  This  statute  (2  R.  S. 
43,  §  12,)  does  not  require  the  receiver  to  establish  the  truth  of 
his  petition  by  positive  proof.  It  does  not  require  him  to  give 
positive  proof  of  the  facts  and  circumstances  from  which  its 
truth  is  to  be  inferred.  It  requires  him  to  show  to  the  satisfac- 
tion of  the  officer  that  there  was  good  reason  to  believe  that 
Halliday  was  a  debtor  to  the  corporation,  or  that  he  had  its 
property  in  his  possession  ;  and  it  made  the  receiver's  own  oath 
evidence  for  that  purpose.  It  also  authorized  "other  competent 
proof"  instead  of  the  oath  of  the  party  ;  but  the  makers  of  the 
statute  could  not  have  intended  proof  competent  to  establish  the 
facts  in  a  legal  sense,  as  before  a  jury.  The  facts  are  not  required 
to  be  so  established  ;  and  proof  sufficient  to  create  a  rational  be- 
lief is  all  that  the  language  calls  for,  and  this  may  fall  far  short 
of  that  which  is  necessary  to  authorize  a  verdict.  In  all  other 
respects  the  statute  is  silent  with  respect  to  the  nature  and 
quality  of  the  proof  on  which  the  officer  is  to  exercise  his  judg- 
ment. 

By  the  act  of  1811,  for  relief  against  absconding  debtors, 
from  which  the  provisions  in  the  present  statute  are  taken,  (see 
1  R  L.  160,  §  12,)  a  warrant  in  a  case  like  the  present  might 


336  CASES  IN  THE  COURT  OF  APPEALS. 

Noble  r.  Halliday. 


have  been  issued  by  any  justice  of  the  peace,  upon  tne  applica 
lion  of  the  trustees  against  "  any  person  known  or  suspected 
to  detain  any  part  of  the  estate  or  to  be  indebted  to  it."  The 
present  statute  has  taken  this  power  away  from  justices  of  the 
peace,  and  has  conferred  it  upon  officers  of  a  higher  grade. 
(2  R.  S.  34,  §  1.)  And  instead  of  allowing  the  warrant  against 
any  person  whom  the  trustees  might  suspect  to  be  indebted  to 
the  estate,  it  is  now  allowed,  wherever  the  officer  has  "good 
reason  to  believe,"  that  any  person  is  so  indebted.  But  the  ob- 
ject and  policy  of  the  law  is  unchanged  ;  and  it  is  apparent 
that  the  legislature  intended  to  permit  examinations  of  this 
nature  to  be  made  at  the  instance  of  receivers  and  trustees 
upon  very  slight  proof;  a  shade  stronger,  indeed,  than  mere 
suspicion ;  but  it  is  clear  that  legal  certainty  is  not  required. 
It  would  have  been  absurd  to  require  it,  or  to  suppose  it  could 
oe  had  until  after  the  arrest  and  examination. 

The  proof  in  this  case  was  that  the  receiver  was  informed 
and  believed  that  Halliday  was  indebted  to  the  corporation 
and  had  its  property  in  his  possession.  According  to  the  case 
of  Fitch,  an  absent  debtor,  (2  Wend.  298,)  this  was  sufficient. 
In  that  case  the  creditor  was  required  by  the  statute,  (1  R.  L. 
163,  §  23,  act  of  1801,)  to  make  proof  by  two  witnesses  to  the 
satisfaction  of  the  judge,  of  the  residence  of  the  debtor  out  of 
the  state.  Two  witnesses  swore  to  their  belief  that  he  resided 
out  of  the  state,  without  setting  forth  the  grounds  of  such  belief. 
The  proof  was  held  to  be  sufficient;  and  in  the  case  of 
Haynes,  ex  parte,  (18  Wend.  614,)  Mr.  Justice  Cowen  says, 
"  on  such  a  statute,  with  the  high  authorities  to  which  I  have 
referred,  I  think  I  should  not  hesitate  in  receiving  the  oath  of 
mere  belief."  The  belief  of  the  applicant  was,  in  that  case, 
regarded  by  those  eminent  judges  sufficient  to  establish  a  fact 
to  be  proved  to  the  satisfaction  of  the  judge.  The  statute,  in 
the  present  case,  does  not  require  any  fact  to  be  established  by 
proof;  it  demands  only  that  the  judge  shall  be  satisfied  that 
there  is  good  reason  to  believe  the  fact. 

When  the  warrant  against  Halliday  was  issued,  the  officer 
had  before  him,  as  the  basis  on  which  his  belief  might  be  found- 


ROCHESTER,  JUNE,  1848.  337 

Noble  v.  Halliday. 

ed,  not  only  the  belief  of  the  receiver,  but  the  information  on 
which  the  receiver's  belief  was  founded.  The  case  as  it  existed 
in  thi  mind  of  the  receiver,  was  laid  before  the  officer.  Infor- 
mation constitutes,  in  many  cases,  ground  of  rational  belief. 
In  our  daily  and  most  important  transactions  we  act  on  belief 
resting  on  that  foundation  only.  The  fact  that  this  informa- 
tion had  been  given  to  the  receiver  was  legally  proved.  The 
truth  of  the  information  was  not  proved ;  but  I  think  the  re- 
corder might  properly  take  notice  of  the  fact  that  such  informa- 
tion had  been  given,  and  if  it  operated  on  his  judgment  as  it 
seemed  to  have  affected  the  mind  of  the  receiver,  by  creating  a 
belief  that  Halliday  was  indebted  to  the  corporation,  it  was  all 
the  act  required.  The  act  does  not  require  the  certainty  of 
legal  conclusion,  as  to  the  facts  on  which  the  application  is 
grounded. 

In  regard  to  the  proof  on  which  the  warrant,  in  cases  like 
the  present,  is  to  issue,  the  statute  differs  entirely  from  that 
which  authorizes  attachments  against  absconding  debtors ;  (2 
R.  S.  3,  §  5  ;)  and  from  that  which  authorizes  attachments  and 
warrants  in  justices' courts.  (2  R.  S.  229,  §  19  ;  Laws  of  1831, 
ch.  300,  §  35.)  In  those  cases  the  facts  and  circumstances  to 
establish  the  grounds  on  which  the  application  is  made  must 
be  stated  and  proved.  Such  facts  are  made  the  only  evidence 
on  which  the  magistrate  can  act,  and  the  belief  of  the  applicant 
as  one  of  the  ingredients  of  proof  is  excluded.  It  differs  also 
from  that  part  of  the  act  to  abolish  imprisonment  for  debt,  which 
authorizes  warrants  against  fraudulent  debtors.  (Laws  of 
1831,  ch.  300,  §§  3, 4.)  The  party  applying  for  a  warrant  under 
that  act  must  give  evidence  establishing  one  or  more  of  the 
frauds  specified  in  those  sections,  and  facts  must  be  shown  to 
satisfy  the  judge  that  the  fraud  actually  exists;  and  not  merely 
to  show  there  is  reason  to  believe  that  it  exists.  The  decisions, 
therefore,  as  to  the  proof  required  under  these  statutes,  are  not 
applicable  to  the  present  case.  The  objects  and  consequences 
resulting  from  the  granting  of  process  under  those  statutes  are 
entirely  different  from  the  object  and  purpose  of  the  warrant  in 
the  present  case.  They  are  proceedings  to  obtain  a  judgment 

VOL.  I.  43 


338  CASES  IN  THE  COURT  OF  APPEALS. 

Noble  v.  Halliday. 

or  decree.  This  is  to  obtain  evidence.  There  he  must  contro- 
vert the  allegation  or  pay  the  debt.  Here  he  is  discharged  from 
the  process  on  giving  his  testimony. 

I  am  unable  to  perceive  any  good  reason,  independent  of  the 
statute,  why  the  proof  to  compel  Halliday  to  testify  should  be 
any  stronger  or  more  formal  than  that  on  a  bill  of  discovery, 
or  indeed  than  that  on  which  an  attachment  is  granted  against 
an  ordinary  witness  for  non-attendance  under  a  subpoena. 
Such  a  witness  may  be  subpoenaed  without  any  proof  of  his 
materiality,  and  is  bound  to  attend ;  he  is  liable  to  a  penalty 
of  fifty  dollars  for  non-attendance.  (2  R.  S.  400,  §  43.)  An 
attachment  issues  against  him  on  proof  of  his  having  been 
served  with  a  subpoena  and  of  his  failure  to  attend.  (Id.  441.) 
And  where  he  is  summoned  to  appear  before  any  judge  or  of- 
ficer to  give  testimony  or  have  his  deposition  taken,  such  judge 
or  officer,  on  his  failure  to  attend,  and  on  proof  of  service  of  the 
summons  and  of  such  failure,  is  required  to  issue  his  warrant 
to  bring  him  before  the  officer  to  be  examined ;  and  for  refusing 
to  be  examined  when  brought  before  the  officer,  the  witness  is 
committed  to  jail  until  he  submits.  No  proof  of  the  materiality 
of  his  testimony,  or  of  the  necessity  of  taking  it,  is  required. 

The  statute,  however,  under  which  the  warrant  issued  in 
this  case,  must  govern.  But  if  there  be  any  doubt  about  its 
meaning,  as  to  the  proof  required  to  obtain  the  warrant,  it 
should  receive  that  construction  which  is  most  in  conformity 
with  proceedings  having  the  like  nature  and  object.  I  am  sat- 
isfied that  the  petition  and  warrant  were  in  all  respects  legal. 
They  constituted  a  valid  defence  to  the  action  brought  by  Hal 
liday  againt  those  who  acted  under  them. 

But  it  seems  to  be  supposed  that  the  plaintiff  is,  nevertheless, 
entitled  to  judgment,  on  the  ground  that  Noble,  by  his  demur- 
rer to  the  plaintiff's  replication  to  his  second  plea,  admitted 
on  the  record  that  Noble  did  not  show  to  the  recorder  "  good 
reason  to  believe  that  Halliday  was  indebted  to  the  corpo- 
ration," &c. 

For  the  purpose  of  understanding  the  force  of  this  objection, 


ROCHESTER,  JUNE,  1848.  339 

Noble  v.  Halliday. 

it  is  necessary  to  make  a  brief  statement  of  the  pleadings  be- 
tween Halliday  and  Noble. 

1.  Halliday  declared  against  Noble  for  an  assault  and  bat- 
tery, and  false  imprisonment.  2.  Noble  pleaded  a  justification 
under  the  warrant  issued  by  the  recorder  of  New- York,  setting 
it  forth  in  substance.  3.  Halliday  replied,  setting  forth  at  full 
length  Noble's  petition  to  the  recorder  for  the  warrant,  and  con- 
cluded his  replication  with  a  traverse  denying  that  Noble"  had 
shown,  by  his  own  oath,  to  the  satisfaction  of  the  recorder,  that 
there  was  good  reason  to  believe  that  the  plaintiff,  Halliday, 
was  indebted  to  the  corporation,  or  had  its  property  in  his  pos- 
session." To  this  replication  Noble  demurred,  and  Halliday 
joined  in  demurrer. 

It  is  now  contended  that  by  this  demurrer  Noble  admitted 
that  he  did  not  show  on  his  oath,  to  the  satisfaction  of  the  re- 
corder, that  Halliday  was  so  indebted,  &c.  But  this  is  a  mis- 
take. Halliday's  replication  is  bad,  because  it  puts  his  case 
upon  a  supposed  defect  in  the  petition,  which  defect  does  not 
exist.  The  petition  for  the  warrant  was  good  ;  and  the  plain- 
tiff, Halliday,  by  setting  it  forth  in  his  replication,  showed  that 
Noble  had  made  all  the  proof  necessary  to  entitle  him  to  the 
warrant  from  the  recorder.  The  traverse  by  Halliday  was  re- 
pugnant to  the  previous  part  of  the  replication.  It  denied  what 
he  had  just  previously  shown  was  true,  to  wit,  that  Noble  had 
made  the  necessary  proof  to  obtain  the  warrant.  Noble  was 
right  in  demurring.  Halliday  had  shown  in  his  replication  all 
that  was  necessary  to  Noble's  defence.  If  the  traverse  was  not 
a  contradiction  of  the  matters  of  fact  previously  stated  in  the 
replication,  it  was  nothing  but  a  denial  of  the  legal  effect  of  the 
petition  for  the  warrant.  This  was  a  question  of  law,  and  not 
traversable.  It  is  a  familiar  principle  that  a  demurrer  confesses 
nothing  except  that  which  is  well  pleaded. 

The  cases  of  Livingston  and  Lamberson  are  governed  by  the 
same  principles  which  are  applicable  to  that  of  Mr.  Noble. 
They  are  alike  in  all  those  respects  in  which  the  sufficiency  of 
the  defence  is  questioned. 

The  special  pleas  would  have  been  bad  on  special  'T-«nurrer, 


340  CASES  IN  THE  COURT  OF  APPEALS. 

Noble  v.  Halliday. 

on  the  ground  that  each  attempts,  by  the  averment  that  the 
acts  mentioned  in  it  "  are  the  several  trespasses  mentioned  in 
the  declaration,"  &c.  to  make  that  an  answer  to  all  the  counts 
which  is  in  fact  an  answer  to  one  count  only.  But  by  reply- 
ing, the  plaintiff  has  lost  the  benefit  of  that  objection.  (1  Ch. 
PL  450,  559,  7th  Am.  ed. ;  7th  Lond.  ed.  429,  553 ;  23  Wend. 
488 ;  Arch.  N.  P.  497,  Lond.  ed.  of  1845.) 

On  the  whole,  the  defence  set  up  by  the  defendants  under 
the  recorder's  warrant,  appears  to  be  a  good  one  ;  and  to  have 
been  substantially  well  pleaded. 

The  judgment  of  the  superior  court  was  not  erroneous.  That 
of  the  supreme  court  should  be  reversed. 

JEWETT,  C.  J.,  and  GARDINER,  J.,  also  delivered  opinions 
in  favor  of  reversing  the  judgment  on  similar  grounds. 

BRONSON,  J.  (dissenting.)  I  cannot  agree  in  the  result  to 
which  a  majority  of  my  brethren  have  arrived.  This  is  not 
merely  a  question  about  the  examination  of  a  witness.  It  is  a 
question  of  personal  liberty.  The  plaintiff  has  been  arrested; 
and,  as  I  think,  without  lawful  authority.  The  necessary 
facts  were  to  be  shown,  to  the  satisfaction  of  the  officer,  by  the 
oath  of  the  receiver,  "or  other  competent  proof."  (2  R.  S.  43, 
§  12.)  Information  and  belief  that  a  man  owes  a  particular 
debt,  or  that  he  has  money  or  property  in  his  hands  belonging 
to  another,  are  no  proof  whatever  of  the  fact :  especially  where 
as  in  this  case,  the  deponent  tells  who  gave  him  the  informa- 
tion, and  assigns  no  reason  for  not  producing  the  affidavit  of 
his  informant.  The  recorder  had  no  right  to  be  satisfied  with- 
out some  proof ;  and  there  was  none  at  all. 

I  do  not  doubt  that  the  defendants  acted  honestly,  and  with- 
out any  improper  intentions ;  but  that  is  not  enough  where  a 
man  has  been  imprisoned  w'thout  authority. 

Judgment  reversed. 


ROCHESTER,  JUNE,  1848.  34  j 

Taylor  v.  Morris. 


TAYLOR  vs.  MORRIS.  341 

19          '455 

A.  testator,  by  his  last  will  and  testament,  appointed  three  persons  his  executors,  and 
authorized  them,  or  the  survivor  of  them,  to  sell  and  convey  any  part  of  his  real 
estate,  "  in  case  they  should  find  it  proper  or  most  fit  in  their  opinion"  to  sell  the 
»ame  for  the  purpose  of  paying  his  debts.  Two  of  the  executors  neglected  to  qual- 
ify, and  never  acted  as  such.  The  other  executor  duly  qualified,  and  took  out 
letters  testamentary  in  his  own  name  only,  and  subsequently  sold  and  conveyed  a 
portion  of  the  testator's  real  estate  for  the  purpose  specified  in  the  will ;  held,  that 
the  power  contained  in  the  will  was  well  executed,  and  that  the  conveyance 
was  valid. 

It  seems,  that  the  statute,  (2  R.  S.  109,  §  55,)  which  provides,  that,  where  real  estate 
is  devised  to  executors  to  be  sold  by  them,  or  is  ordered  by  any  last  will  to  be  sold 
by  them,  and  any  of  the  executors  neglect  or  refuse  to  qualify  and  act  as  such,  the 
sale  may  be  made  by  the  executor  or  executors  who  take  upon  themselves  the 
execution  of  the  will,  applies  as  well  to  discretionary,  as  to  peremptory  powers 
of  sale. 

EJECTMENT,  brought  by  Andrew  C.  Morris  against  Robert 
L.  Taylor,  in  the  New- York  common  pleas,  for  an  undivided 
fourteenth  of  a  lot  of  land  in  that  city.  On  the  trial  in  the 
common  pleas  the  case  was  this :  Andrew  Morris,  the  grand- 
father of  the  plaintiff  below,  died  in  1828  seized  in  fee  of  the 
whole  of  the  premises  in  question,  having  first  made  and  pub- 
lished, in  due  form,  his  last  will  and  testament,  as  follows  : 

"  I  Andrew  Morris,  of  the  city  of  New- York,  do  make  this  my 
last  will  and  testament,  revoking  any  I  may  have  heretofore 
made.  I  direct  my  executrix  and  executors,  hereinafter  named, 
to  pay  my  just  debts  out  of  my  estate.  I  give  my  wife  Ellinor 
all  the  silver  plate  and  household  furniture  of  every  kind  and 
description  that  I  may  be  possessed  of,  together  with  one  third 
of  my  personal  property,  leaving  also  to  her  her  right  of  dower 
in  my  real  estate.  I  give  one  half  of  the  remainder  of  my  estate, 
real  and  personal,  to  my  daughter  Margaret  E.  Willcocks,  the 
wife  of  Lewis  Willcocks,  and  to  her  heirs  and  assigns.  And  I 
give  the  other  half  of  the  remainder  of  my  estate,  real  and  per- 
sonal, to  the  children  of  my  son  Thomas  A.  Morris,  whom  he 
now  has  or  hereafter  may  have,  to  be  divided  equally  among 


342  CASES  IN  THE  COURT  OF  APPEALS. 

Taylor  r.  Morris. 

them.  I-  hereby  appoint  my  wife  Ellinor  my  executrix,  and 
my  son  Thomas  A.  Morris,  and  my  son-in-law  Lewis  Willcocks, 
to  be  executors  of  this  will.  And  I  do  hereby  authorize  them, 
or  the  survivor  of  them,  to  sell  any  part  of  my  real  estate,  and 
give  a  deed  or  deeds  for  the  same,  in  case  they  shall  find  it 
proper  or  most  Jit,  in  their  opinion,  to  sell  the  same  for  the  pur- 
pose of  paying  my  debts.  And  I  hereby  appoint  my  said  son 
Thomas,  guardian  of  his  children  during  their  minority,  and 
in  case  he  should  at  any  time  consider  it  best  and  proper  for 
their  interest  to  sell  their  part  of  my  real  estate,  then  I  author- 
ize him  to  sell  the  same,  or  any  part  of  it,  and  give  a  deed  or 
deeds  for  any  part  he  may  sell,  and  put  the  money  arising  there- 
from at  interest,  and  appropriate  such  interest,  or  any  income 
of  this  devise,  for  the  education,  benefit  and  bringing  up  of  his 
said  child  ten.  In  testimony,"  &c. 

The  plaintiff  was  one  of  seven  children  which  Thomas  A. 
Morris  had  at  the  death  of  the  testator,  and  claimed  an  undi- 
vided fourteenth  of  the  premises  under  the  will.  The  defen- 
dant was  in  possession  at  the  commencement  of  the  suit,  and 
claimed  title  under  a  sale  and  conveyance  of  the  premises  made 
by  Lewis  Willcocks,  one  of  the  executors  named  in  the  will. 
The  will  was  duly  proved  as  a  will  of  real  estate  before  the 
surrogate  of  the  city  and  county  of  New- York,  in  March,  1833, 
and  in  July,  1834,  the  said  surrogate  granted  letters  testamen- 
tary to  the  said  Lewis  Willcocks.  Ellinor  Morris,  the  execu- 
trix, and  Thomas  A.  Morris,  the  other  executor,  were  not 
named  in  (he  letters,  and  never  appeared,  qualified,  or  acted  as 
executrix  and  executor ;  but  no  formal  steps  were  ever  taken 
to  procure  their  renunciation. 

On  the  17th  of  September,  1831,  the  said  Lewis  "Willcocks, 
as  sole  acting  and  qualified  executor,  sold  and  conveyed  the 
premises  to  Francis  Salmon,  who  afterwards  conveyed  to  the 
defendant.  Ellinor  Morris  joined  in  the  deed  to  Salmon  for  the 
purpose  merely  of  releasing  her  right  of  dower  in  the  premises, 
describing  herself  in  the  deed  as  the  widow  of  Andrew  Morris, 
but  not  as  executrix.  The  deed  recited,  among  other  things, 
that  she  and  Thomas  A.  Morris  had  declined  to  take  upon 


ROCHESTER,  JUNE,  1848.  343 


Taylor  v.  Morris. 


themselves  the  execution  of  the  will.  It  was  admitted,  on  the 
trial,  that  the  defendant's  title  was  good,  provided  Lewis  Will- 
cocks  had  power  under  the  will  to  sell  and  convey  the  real  es- 
tate of  the  testator,  without  the  concurrence  of  Thomas  A. 
Morris,  the  other  executor. 

Upon  these  facts,  the  court  of  common  pleas  ruled,  that  un- 
der the  will  it  was  necessary  that  all  the  executors  named 
should  join  in  the  conveyance  in  order  to  render  it  valid,  and 
that  as  Thomas  A.  Morris  had  not  joined  in  the  conveyance  to 
Salmon,  the  defendant  had  failed  to  make  out  a  title.  A  ver- 
dict was  accordingly  taken  for  the  plaintiff,  on  which  judgment 
was  rendered,  and  the  supreme  court  on  error  affirmed  such 
judgment.  The  defendant  below  brings  error  to  this  court. 

Frederick  R.  Sherman,  for  plaintiff  in  error.  The  concur- 
rence of  Thomas  A.  Morris,  the  other  executor,  was  not  neces- 
sary to  give  validity  to  the  deed.  By  statute,  (2  R.  1$.  71,  §  15,) 
every  person  named  in  a  will  as  executor,  and  not  named  as 
such  in  the  letters  testamentary,  shall  be  deemed  superseded 
thereby,  and  shall  have  no  power  or  authority  whatever  as  ex- 
ecutor. The  mere  will  itself,  therefore,  does  not  in  this  state, 
as  in  England,  make  a  person  executor.  He  must  appear  and 
qualify,  by  taking  the  oath  of  office,  and  by  taking  out  letters 
testamentary.  A  refusal  or  neglect  to  comply  with  these  requi- 
sites, is,  in  effect,  the  same  as  a  renunciation  by  record,  of  the 
trust.  Thomas  A.  Morris  and  Ellinor  Morris,  not  having  com- 
plied with  these  requisites,  are  therefore  to  be  considered  as  blot- 
ted out  of  the  will,  and  this  leaves  Lev/is  Willcocks,  in  effect, 
the  surviving  executor.  (Roseboom  v.  Masher,  2  Denio,  63 ; 
Sharp  v.  Pratt,  15  Wend.  610  ;  Zcbactts  Lessee  v.  Smith, 
3  Bin.  69.) 

The  power  in  question  was  well  executed  under  the  revised 
statutes,  (2  R.  S.  109,  §  55,)  which  declares,  that  when  real  es- 
tate is  devised  to  executors  to  be  sold,  or  where  it  is  ordered  to 
be  sold  by  the  executors,  and  any  executor  shall  neglect  of  re- 
fuse to  take  upon  him  the  execution  of  the  will,  then  the  sale, 
made  by  the  executor  who  does  take  noon  himself  the  exec" 


344  CASES  IN  THE  COURT  OF  APPEALS. 

Taylor  v.  Morris. 

lion  of  the  will,  shall  he  valid,  as  if  all  had  joined.  (Roseboom 
v.  Mosher,  2  Dcnio,  63  ;  Fran/din  v.  Osgood,  14  John.  554 ; 
Sharp  v.  Pratt,  15  Wend.  610 ;  Bunner  $•  Manning's,  ex- 
ecutors, v.  Storm,  1  Sand.  Ch.  Rep.  357 ;  Ogdcn  v.  Smith,  2 
Paige,  198  ;  £ferfc//  v.  Fa/i  Bur  en,  4  £fc7/,  494 ;  ZebacVs 
Lessee  v.  StofcA,  3  Bin.  69  ;  3  McCorcFs  Rep.  (S.  C.)  29 ;  1 
Dev.  fy  Batt.  389 ;  3  Munf.  345,  347 ;  6  Rand.  594  ;  1  Ham- 
mond, 232.) 

The  executors  in  the  will  in  question  take  as  executors  vir- 
tute  officii,  and  not  nominatim,  as  individuals.  They  are  ap- 
pointed to  sell  by  their  official  description,  and  are  to  apply  the 
produce  of  the  sale  officially  ;  that  is,  to  the  payment  of  the  tes- 
tators debts.  The  payment  of  debts  is  strictly  an  executorial 
duty,  and  the  power  to  sell  for  that  purpose  is  highly  favored. 
(Sug.  on  Pow.  144;  Pow.  on  Dev.  240;  Wither  all  v.  Gar- 
tham,  6  T.  R.  396  ;  Jenk.  Cent.  p.  44,  case  83.) 

The  power  contained  in  this  will,  viewed  at  common  law,  is 
not  a  mere  naked  power,  but  a  power  coupled  with  a  trust,  to 
wit,  the  payment  of  debts ;  and  there  being  also  some  interest 
in  the  executors  themselves,  the  case  falls  directly  within  the 
principle  of  Franklin  v.  Osgood,  (14  John.  554.) 

The  judgment  of  the  supreme  court  should  be  reversed  with 
costs. 

/  G.  Ring,  for  the  defendant  in  error.  The  conveyance  by 
Wiilcocks  to  Salmon,  having  been  made  without  the  concur- 
rence of  Thomas  A.  Morris,  his  co-executor,  was  void,  and 
passed  no  estate  in  the  land  to  Salmon. 

A  power  or  authority  given  to  t\vo  or  more  persons  cannot,  in 
the  nature  of  things,  be  executed  by  a  less  number  than  the 
whole.  It  is  true  that  at  common  law  a  distinction  was  made 
between  what  was  termed  a  naked  power  and  what  was  termed 
a  power  coupled  with  an  interest.  The  former  could  not  be 
executed  without  the  concurrence  of  the  whole  number  of  per- 
sons to  whom  it  was  given,  and  if  one  died  or  refused  to  act, 
the  power  could  not  be  executed.  (Co.  Lilt.  112  b,  113  a,  181  b  . 
Shcp.  Touch.  419,  pi  9  ;  Powell  on  Devises,  292,  310.)  The 


ROCHESTER,  JUNE,  1848.  345 

Taylor  v.  Morris. 

latter  might  be  executed  by  the  survivor  or  by  the  person  taking 
upon  himself  its  execution  ;  (3  Salk.  277  ;  3  Atk.  714 ;  2  P. 
Wms.  102  ;  1  Caines1  Cas.  in  Err.  15 ;  3  Cowerts  R.  654 ;) 
but  a  careful  examination  shows  that  there  is  nothing  in  these 
rules  which  militates  against  the  above  proposition.  To  under- 
stand the  meaning  of  the  terms  "naked  powers"  and  "  powers 
coupled  with  an  interest,"  as  here  applied,  it  is  necessary  to  go 
back  to  common  law  definitions. 

"  A  naked  authority,"  says  Powell  in  his  treatise  on  devises, 
"  is  where  a  man  devises  that  his  executors  shall  sell  his  land, 
or  orders  his  land  to  be  sold  by  his  executors,  or  appoints  A.  and 
B.,  whom  he  makes  his  executors,  to  sell  his  land.  In  all  these 
cases  the  executors  have  only  a  naked  power,  and  after  the 
death  of  the  testator  the  freehold  descends  to  the  heir."  (Pow. 
on  Dev.  292,  3.)  The  same  writer  says,  "  If  lands  be  devised 
to  the  executors  to  be  distributed  for  the  good  of  the  testator's 
soul,  in  this  case  the  freehold  is  in  the  executors  after  the  death 
of  the  testator  and  not  in  the  heir.  By  this  devise  they  have 
authority  coupled  with  an  interest."  (Id.  301.  See  also  Sug- 
den  on  Powers,  129.) 

These  definitions  render  the  reason  of  the  rules  alluded  to 
perfectly  intelligible.  A  naked  power  to  two  cannot  in  the  na- 
ture of  things  be  executed  by  one,  because  one  is  not  two,  and 
less  than  two  does  not  satisfy  the  words  of  the  donor.  A  power 
coupled  with  an  interest  can  be  executed  by  the  survivor,  &c.  ; 
not  indeed  as  a  power,  (and  here  lies  the  key  to  the  whole  dif- 
ficulty,) because  the  same  technical  objection  would  here  apply 
as  to  a  naked  power,  that  a  part  is  not  the  whole.  But  the 
land  being  vested  in  all  in  joint  tenancy,  upon  the  death  of  one 
goes  to  the  survivors  by  the  jus  accrescendi,  (4  Kent's  Com.  360,) 
and  the  trust  (all  powers  whether  naked  or  coupled  with  an 
interest  were  originally  to  direct  uses  and  perform  trusts,)  (4 
Kent's  Com.  505,  314.}  follows  the  land ;  (2  Story's  Eq.  Jur 
288,  §  976  ;)  and  a  court  of  equity  would  compel  the  survivors 
to  execute  the  trust ;  and  what  a  trustee  may  be  compelled  to 
do  by  suit  he  may  voluntarily  do  without  suit.  (  2  Story's  Eq. 
fur.  290,  §  979.)  The  power  itself  actually  becomes  exunct, 
T.  4.4 


346  CASES  IN  THE  COURT  OF  APPEALS. 

Taylor  r.  Morris. 

but  the  trust  surviving,  a  duty,  and  consequently  an  authority 
to  execute  it  also  survives.  The  rule  was  precisely  the  same 
where  one  of  the  trustees  refused  to  accept  the  estate,  which  in 
such  case  would  vest  in  the  one  accepting.  (3  Paige,  421.) 

In  the  case  before  the  court  the  power  is  a  naked  one  ;  but 
were  it  otherwise,  and  were  the  land  vested  in  the  executors, 
the  survivor  could  not,  without  the  express  authority  given  in 
the  will,  execute  the  power,  because  there  is  no  trust  connected 
with  it  which  a  court  of  equity  could  enforce. 

At  common  law,  neither  a  naked  power  nor  a  power  coupled 
with  an  interest  could  be  executed  by  less  than  the  whole  while 
the  whole  were  living-  and  had  not  rejected  the  trust.  (Sin- 
clair v.  Jackson,  8  Cowen,  544 ;  Bogert  v.  Hertell,  4  Hill,  514.) 
In  the  present  case,  Thomas  A.  Morris  had  neglected  to  qual- 
ify as  executor,  hut  he  had  not  rejected  the  trust.  (Sugdenon 
Pow.  138 ;  Judson  v.  Gibbons,  5  Wend.  227 ;  4  Hill,  508 
512  ;  21  Wend.  436.) 

The  revised  statutes  (1  R.  S.  735,  §  112,)  provide  "  where  a 
power  is  vested  in  several  persons,  all  must  unite  in  its  execu- 
tion ;  but  if  previous  to  such  execution  one  or  more  shall  die, 
the  power  may  be  executed  by  the  survivor  or  survivors.  The 
conveyance  of  NY'illcocks  is  void  under  this  provision  of  the  statute. 

The  revised  statutes,  (vol.  2,  p.  109,  §  55.)  has  no  application 
to  a  case  like  the  present,  because  the  land  is  not  ordered  to  be 
sold.  This  statute  is  substantially  a  re-enactment  of  the  stat- 
ute 21  lien.  8,  (see  2  Paige,  108,)  which  statute  applies  to  na- 
ked powers,  as  is  shown  by  the  recital  "  whereas  divers  sundry 
persons  before  this  time  having  other  persons  seized  to  their 
uses  of  and  in  lands,"  &c.  and  was  enacted  to  remedy  the  in- 
convenience of  a  strict  construction  of  the  common  law,  where 
one  of  the  executors  refused  to  intermeddle,  by  enabling  the 
other  executors,  who  accepted,  to  sell,  and  rendering  their  dis- 
position valid.  (Powell  on  JJcv.  310  ;  Sugd.  on  Powers,  139  ; 
7  Dana,  8.)  It  was  unnecessary  to  extend  the  statute  to  pow- 
ers coupled  with  an  interest,  (that  is,  where  the  donee  also  has 
the  legal  estate,)  because  the  executors  in  such  case  had  full 
power  at  common  law. 


ROCHESTER,  JUNE,  1848.  347 

Taylor  v.  Morris. 

The  section  of  the  revised  statutes  referred  to  embraces  both 
naked  powers  and  powers  coupled  with  an  interest,  the  latter 
of  course  unnecessarily. 

The  language  of  the  statute,  21  Hen.  8,  is  where  testators 
have  by  their  last  wills  "  willed  and  declared  such  their  lands 
to  be  sold  by  their  executors."  The  language  of  the  section  of 
the  revised  statutes  referred  to  is,  "  or  where  such  estate  is  or- 
dered by  any  last  will  to  be  sold  by  the  executors"  &c. 

Where  land  is  ordered  to  be  sold  ;  that  is,  where  it  appears 
from  the  will  that  the  testator  had  determined  to  have  it  sold ; 
such  a  trust  is  created  as  would  be  enforced  by  a  court  of  equity 
in  case  of  the  death  or  refusal  of  one  or  all  of  the  executors  ; 
and  the  statute  does  nothing  more  than  anticipate  the  appoint- 
ment of  a  trustee  by  a  court  of  equity.  But  the  statute  has  no 
application  to  cases  like  the  present,  where  there  is  a  discretion 
given  to  the  executors  to  determine  whether  the  land  shall  be 
sold  or  not.  There  is  in  such  cases  no  enforcible  trust,  and 
the  exercise  of  the  discretion  by  less  than  the  whole  would  be  a 
manifest  violation  of  the  intention  of  the  testator.  (Clay  and 
Craig  v.  Hart,  7  Dana,  2  ;  Wooldridge  v.  Watkins,  3  Bibb, 
349  ;  Coleman  v.  McKinney,  3  J.  J.  Marsh.  248  ;  Peters  v. 
Beverley,  10  Peters,  532  ;  1  R.  S.  734.  §  96  ;  and  as  to  execu- 
tion of  such  a  discretionary  power  at  common  law,  see  Sug- 
den  on  Powers,  145,  148,  222;  Moore,  61,  pi.  172;  Cole  v. 
Wade,  16  Ves.  27,  45,  46,  47  ;  Walter  v  .  Maunde,  19  id.  424; 
7  Dana,  2,  and  cases  cited  ;  2  Story's  Eq.  Jitr.  397,  §  1061.) 

The  testator  directs  his  debts  to  be  paid  out  of  his  estate ; 
which  is  the  usual  direction  in  all  wills,  and  gives  the  executors 
no  authority  to  meddle  with  the  real  estate.  The  method  of 
paying  debts  "  out  of  the  estate,"  where  no  power  is  given  by 
the  will  to  sell  real  estate,  is  first  to  appropriate  all  the  personal 
property  to  that  purpose,  and  upon  that  proving  to  be  insuffi- 
cient, the  executor  applies  to  the  surrogate  for  an  order  to  sell 
the  real  estate ;  before  this  can  be  obtained,  it  is  necessary  that 
all  the  heirs  and  devisees  should  be  cited,  and  the  executor 
must  show  "  that  the  whole  of  the  personal  property  which 
could  be  applied  to  the  payment  of  debts  of  the  deceased  has 


348  CASES  IN  THE  COURT  OF  APPEALS. 


Taylor  v.  Morris. 


been  duly  applied  for  that  purpose."  (2  R.  S.  102,  §  14,  sub.  3.) 
Under  a  power  to  sell  real  estate  to  pay  debts,  the  executors  act 
without  any  check,  and  may  resort  to  the  land  in  the  first 
instance.  They  may  squander  away  every  dollar  of  the  per- 
sonal property  and  still  sell  the  real  estate,  and  in  answer  to 
any  complaint  of  the  devisees  they  may  say  "  we  think  most  fit 
and  proper"  (See  Roseboom  v.  Mosher,  2  Dcnio,  62.) 

The  common  law  doctrine  respecting  powers  given  to  indi- 
dividuals  "  nominating"  and  powers  given  to  them  '•  eo  nomine" 
cannot  affect  the  present  case,  because,  1st,  the  power  is  given 
to  the  executors  nominatim  and  not  eo  nomine.  (Sugden  on 
Powers,  141,  2,  4  ;  4  Kenfs  Com.  326  ;  Powell  on  Dev.  292  ; 
Clay  $•  Craig  v.  Hart,  7  Dana,  2 ;  2  Story's  Eq.  Jur.  398.) 
2d.  A  power  to  individuals  eo  nomine  as  "  my  executors"  could 
not  be  executed  by  a  single  individual,  because  a  single  indi- 
vidual did  not  answer  the  words  of  the  donor,  "executors"  in 
the  plural.  In  the  language  of  Coke,  it  could  only  be  executed 
while  the  plural  number  remained.  3d.  The  doctrine  did  not 
apply  to  cases  of  mere  discretion.  See  Clay  $*  Craig  v.  Hart, 
(7  Dana,  2,)  in  which  case  the  power  was  given  to  the  "  execu- 
tors" eo  nomine.  (See  also  1  R.  S.  735,  §  112.) 

The  statute  (2  R.  S.  71,  §  15)  declaring  that  any  executor  not 
named  in  the  will  shall  be  deemed  superseded,  does  not  aid  the 
execution  of  the  power  in  question.  For  if  the  statute  did  sus- 
pend the  power  of  Thomas  A.  Morris,  still  Willcocks  acquired 
no  additional  power  thereby.  But  the  statute  did  not  suspend 
the  powers  of  Thomas  A.  Morris  as  trustee ;  his  powers  as 
executor  were  suspended,  but  not  his  powers  as  trustee.  (Sug- 
dcn  on  Pow.  138;  Judson  v.  Gibbons  5  Wend.  227;  4  Hill, 
508,  512  ;  21  Wend.  432.)  The  object  of  the  provision  of  the 
statute  is  manifest.  At  common  law  an  executor  might  take  pos- 
session of  the  testator's  personal  property  and  perform  nearly  all 
the  legitimate  duties  of  an  executor  without  taking  out  letters 
upon  the  will.  ( Toller  on  Ex'rs,  21.)  This  was  a  defect  in 
the  law,  and  it  was  to  remedy  this  that  the  statute  was  enacted. 


ROCHESTER,  JUNE,  1848.  349 

Taylor  v.  Morris. 

RUGGLES,  J.  The  question  to  be  solved  here  is  not  whether  the 
power  of  sale  survives  to  the  surviving  executor.  The  will  de- 
clares expressly  that  it  shall  so  survive.  But  that  case  has  not  oc- 
curred. The  executors  were  all  living  when  the  deed  in  question 
was  executed  under  the  power.  Two  of  the  three  had,  how- 
ever, neglected  to  act  under  the  will.  Only  one  had  taken  upon 
himself  the  execution  of  the  will.  He  executed  the  deed  in 
question  alone  and  without  the  concurrence  of  the  others.  This 
was  not  a  valid  execution  of  the  power  at  common  law,  and 
whether  it  was  good  under  the  statute  of  this  state,  (2  R.  S, 
109,  §  55,)  is  the  question  presented  for  decision. 

The  statute  is  as  follows  :  "  Sec.  55.  Where  any  real  estate 
or  any  interest  therein  is  given  or  devised  by  any  will  legally 
executed,  to  the  executors  therein  named,  or  any  of  them,  to 
be  sold  by  them  or  any  of  them,  or  where  such  estate  is  ordered 
by  any  last  will  to  be  sold  by  the  executors,  and  any  executor 
shall  neglect  or  refuse  to  take  upon  him  the  execution  of  such 
will,  then  all  sales  made  by  the  executor  or  executors,  who  shall 
lake  upon  them  the  execution  of  such  will,  shall  be  equally 
valid,  as  if  the  other  executors  had  joined  in  such  sale."  This 
statute  is  not  a  copy  of  21  H.  8,  ch.  4,  but  was  intended  un- 
doubtedly to  embrace  all  the  cases  adjudged  to  fall  within  the 
scope  of  the  English  act,  and  perhaps  others. 

But  the  plaintiff,  who  contests  the  validity  of  the  deed,  insists 
that  the  statute  applies  only  to  those  cases  in  which  the  land 
is  ordered  to  be  sold  by  a  positive  and  mandatory  direction  of 
the  testator  ;  and  not  to  the  case  of  a  mere  power  of  sale,  or 
where  there  is  a  discretion  given  to  the  executors  to  determine 
whether  the  land  shall  be  sold  or  not.  This  distinction  appears 
to  be  somewhat  nice  and  refined  ;  one  that  might  not  occur  to 
all  readers  of  the  statute.  It  seems  to  have  slept  unnoticed 
during  the  progress  and  termination  of  several  contested  cases 
in  this  state  and  elsewhere,  in  which  the  distinction,  if  sound, 
would  have  been  fatal  to  conveyances  that  were  ad'uclged,  in 
those  cases,  to  be  valid. 

In  Roseboom  v.  Mosher,  (2  Denio,  61,)  the  testator  gave  to 
his  executors  discretionary  power  to  sell  his  lands,  if  in  then 


350  CASES  IN  THE  COURT  OF  APPEALS. 

Taylor  v.  Morris. 

opinion,  it  should  become  necessary  for  the  support  and  main- 
tenance of  his  wife  and  children.  One  of  the  executors  ne- 
glected to  qualify,  and  the  other  who  acted  sold  the  land  and 
executed  the  deed.  It  was  regarded  as  a  valid  execution  of 
(he  power  under  the  statute.  The  case  turned  chiefly  on  the 
question  whether  proof  of  renunciation  by  one  was  necessary  to 
enable  the  other  to  execute  the  power ;  and  it  was  held  that 
mere  neglect  to  act  was  enough  without  a  renunciation.  The 
objection  in  that  case  would,  if  valid,  have  been  fatal  to  the 
deed,  but  it  was  not  raised  by  the  counsel,  nor  suggested  by 
the  court. 

Sharp  v.  Pratt,  (15  Wend.  610,)  was  a  case  of  the  same 
kind.  Nicholas  Kiersted  by  his  will  appointed  four  executors, 
and  authorized  them  to  sell  his  real  estate  which  he  had  de- 
vised to  his  children.  Two  of  the  executors  acted  under  the 
will  and  conveyed  the  land  without  the  concurrence  of  the 
others.  The  contested  question  in  the  case  was,  whether  it 
was  necessary  to  show,  in  support  of  the  deed  executed  by  the 
acting  executors,  that  the  others  had  renounced ;  and  it  was 
held  not  to  be  necessary.  The  objection  now  made  was  not 
raised  ;  but  the  language  of  the  court  shows  that  the  statute 
authorizing  acting  executors  to  execute  the  conveyance,  was 
supposed  to  apply  as  well  to  a  mere  discretionary  power,  as  to 
a  mandatory  order  of  sale.  The  court  say,  "the  statute  in- 
tended to  depart  from  the  rule  of  the  common  law,  by  declaring 
that  when  power  is  given  to  several  executors  to  sell  the  land,  it 
may  be  executed  by  such  as  take  charge  of  the  administration, 
if  the  others  refuse  or  neglect  to  take  on  themselves  the  execu- 
tion of  the  will ;"  and  after  some  further  remarks  the  court 
proceed  to  say,  "  The  deed,  therefore,  was  equally  efficacious 
to  transfer  the  title  of  the  testator  as  if  it  had  been  executed  by 
all  the  executors  named  in  the  will.  In  this  respect  the  statute 
ma/ccs  no  distinction  between  a  devise  to  sell  and  a  bare 
authority.'11 

In  Bnnncr  and  Manning,  ex'rs,  v.  Storm,  (1  Sandf.  357,) 
Thomas  Storm  empowered  his  five  executors  to  sell  his  real 
estate.  Two  of  them  acted,  two  renounced,  and  one  was  an 


ROCHESTER,  JUNE,  1848.  351 

Taylor  v.  Morris. 

infant.  The  two  who  acted  sold  the  land  under  the  power, 
and  executed  the  deed  without  the  concurrence  of  the  others. 
In  relation  to  the  nature  of  the  power,  the  vice  chancellor  said. 
"  I  am  satisfied  that  the  testator  intended  to  make  the  executors 
the  judges  of  the  necessity  for  a  sale."  The  question  was 
whether  the  deed  thus  made  by  the  acting  executors  was  a 
valid  execution  of  the  power,  and  the  vice  chancellor  adjudged 
that  it  was. 

Here  then  are  three  cases  in  the  courts  of  this  state,  in  which 
discretionary  powers  of  sale  have  been  held  to  be  within  the 
statute,  and  well  executed  by  acting  executors  without  the 
concurrence  of  the  others.  If  these  cases  are  not  regarded  as 
adjudications  settling  the  construction  of  the  statute  in  this 
state,  they  furnish  at  least  very  strong  proof  of  the  general  un- 
derstanding of  the  profession  and  of  the  courts,  that  the  statute 
embraces  the  case  of  a  mere  discretionary  power  as  well  as  that 
of  a  peremptory  direction. 

But  we  are  referred  to  three  cases  in  the  court  of  appeals  of 
Kentucky,  in  which  it  is  declared  that  where  a  power  of  sale 
is  conferred  upon  executors,  leaving  it  to  their  discretion  whether 
to  sell  or  not,  and  part  of  the  executors  renounce,  the  acting 
executors  cannot  execute  the  power. 

By  a  statute  of  Kentucky,  passed  in  1799,  it  is  enacted  "that 
the  sale  and  conveyance  of  lands  devised  to  be  sold,  shall  be 
made  by  the  executors  or  such  of  them  as  shall  undertake  the 
execution  of  the  will,"  &c.  In  one  of  the  cases  above  mentioned, 
( Wooldridge  v.  Wat/cins,  3  Bibb,  349.)  it  was  held  that  this 
statute  did  not  apply  to  a  case  in  which  the  testator  had  "  left 
it  in  the  power  of  his  executors  to  sell  or  exchange  any  part  of 
his  estate,  real  or  personal,  as  they  might  judge  necessary  for 
the  advantage  of  his  estate."  The  opinion  appears  to  have 
been  founded  on  the  reading  of  the  act,  and  not  upon  any  pre- 
vious adjudication.  No  authority  is  cited.  The  case  was  de- 
cided in  1814. 

In  1830,  in  the  case  of  Coleman  v.  McKinney,  (3  J.  J.  Mar- 
shall, 246,)  it  was  held  that  the  statute  did  apply  to  a  case  in 
vrhich  the  testator  bad  directed  his  executois  to  sell  his  lands 


352     CASES  IN  THE  COURT  OF  APPEALS. 

Taylcx  v.  Morris. 

for  the  payment  of  his  debts,  if  his  personal  estate  should  be  in- 
sufficient for  that  purpose,  because  the  contingency  on  which 
the  sale  was  to  be  made  did  not  depend  on  the  judgment  of  the 
executors.  In  Clay  v.  Hart,  (7  Dana,  1,)  decided  in  1838,  that 
court  affirmed  the  law  as  laid  down  in  Wooldridge  v.  Watkins, 
and  added  that  the  like  doctrine  had  been  long  and  incontro- 
vertibly  settled  in  England,  in  reference  to  the  statute  of  21  H. 
8,  ch.  4.  English  books  were  referred  to  in  support  of  that 
construcion.  But  with  the  greatest  respect  for  that  learned 
court,  I  am  compelled  to  say,  that  I  find  nothing  in  the  books 
referred  to  to  uphold  the  doctrine.  On  the  contrary,  Mr. 
Sugden  in  his  treatise  on  powers,  at  the  place  referred  to, 
(p.  75,)  says  that  formerly  where  a  power  was  given  to 
executors  to  sell,  and  one  of  them  refused  the  trust,  it  was 
clear  that  the  others  could  not  sell,  but  that  the  21  H.  8,  ch.  4, 
had  altered  the  law  in  that  respect.  The  doctrine  derives  no 
support  from  the  case  cited  from  Moore's  reports,  p.  61.  That 
was  not  the  case  of  a  power  of  sale  executed  by  an  acting  ex- 
ecutor without  the  concurrence  of  a  co-executor  who  had  re- 
nounced. Nor  was  it  the  case  of  a  power  in  which  the  executors 
had  a  discretion  to  sell  or  not.  But  it  was  a  case  in  which  the 
land  was  devised  to  be  sold  by  the  testator's  executors,  or  by 
the  executors  of  his  executors.  One  of  the  testator's  executors 
died  intestate,  and  the  survivor  appointed  executors  and  died ; 
and  the  question  was  whether  the  executors  of  the  surviving 
executor  could  make  the  sale.  It  was  adjudged  that  they  could 
not,  because  the  power  was  committed  not  to  them  alone,  but 
to  them  jointly  with  the  executors  of  the  other  executor.  This 
case  throws  no  light  upon  the  construction  of  the  slatute  21  H. 
S.  It  shows  simply  that  a  joint  power  cannot,  at  common  law, 
oe  executed  by  a  part  of  those  to  whom  it  was  entrusted,  and 
vithout  the  concurrence  of  the  rest.  It  was  not  a  case  within 
the  21  //.  8,  because  both  the  original  executors  were  dead. 
Nor  are  the  cases  of  Cole  v.  Wade,  (1G  Ves.  27,)  and  Walter 
v.  Mannde,  (19  id.  424,)  any  more  satisfactory  on  this  point. 
There  the  trust  was  to  divide  the  estate  of  Sir  Charles  Boothe. 
among  his  nearest  and  most  deserving  relations — the  distribu 


ROCHESTER,  JUNE,  1848.  353 

Taylor  t.  Morris. 

tion  to  be  made  entirely  in  the  discretion  of  the  trustees.  The 
trust  was  to  be  executed  by  Ruddle  and  Wade,  the  executors, 
and  the  heirs,  executors  and  administrators  of  the  survivor  of 
them.  It  was  declared  that  the  devisees  of  the  surviving  trustee 
(who  were  not  his  heirs,)  could  not  execute  the  trust,  they  mot 
being  the  persons  designated  therefor  by  Sir  Charles  Boothe, 
the  original  testator.  The  case  has  no  relation  whatever  to 
the  statute  21  H.  8. 

After  bestowing  some  pains  upon  the  search,  I  have  not  been 
able  to  find  any  English  adjudication  or  dictum  that  the  opera 
tion  of  the  statute  21  H.  8,  ch.  4,  is  limited  to  the  case  of  a 
peremptory  order  to  sell.  Lord  Coke  speaks  of  it  as  embracing 
the  case  of  "  a  power  to  sell."  In  his  commentary  upon  Lit- 
tleton, 113,  a,  he  says,  "In  Littleton's  case  admit  that  one  ex- 
ecutor had  refused  to  sell,  then  as  the  law  stood  when  Littleton 
wrote,  it  was  clear  that  the  others  could  not  sell.  But  now  by 
the  statute  21  H.  8,  it  is  provided  that  when  lands  are  willed 
to  be  sold  by  executors,  though  part  of  them  refuse,  yet  the 
residue  may  sell :  And  albeit  the  letter  of  the  law  extendeth 
only  where  executors  have  a  power  to  sell,  yet  being  a  benefi- 
cial law  it  is  by  construction  extended  where  lands  are  devised 
to  executors  to  be  sold."  Mr.  Preston  in  his  essay  on  abstracts 
of  title  (vol.  2,  p.  253,)  repeats  the  language  of  Lord  Coke,  say- 
ing, "  This  statute  has  been  construed  to  extend  as  well  to 
lands  which  are  actually  devised  to  be  sold  to  two  or  more  ex- 
ecutors, as  to  lands  over  which  there  is  merely  an  authority  ;" 
and  in  no  English  book  can  I  find  the  trace  of  such  a  distinc- 
tion as  that  upon  which  the  decision  was  founded  in  the  case 
of  Clay  v.  Hart. 

In  Jackson  v.  Given,  (16  John.  170.)  Mr.  Justice  Platt  seemed 
to  have  in  his  mind  the  distinction  contended  for  on  the  part  of 
the  plaintiff.  But  that  case  presented  a  case  of  survivorship 
and  not  a  question  under  the  statute.  It  was  so  treated  by  me 
counsel.  The  testator  made  four  executors,  and  directed  them 
or  any  two  of  them,  to  sell  his  estate  upon  his  wife's  death  or 
re-marriage.  Two  of  them  died  without  qualifying.  Two 
qualified  as  executors  and  afterwards  one  of  them  died,  and 

VOL.  I.  45 


354     CASES  IN  THE  COURT  OF  APPEALS. 

Taylor  v.  Morris. 

the  survivor  sold  and  conveyed  the  estate.  The  two  who  quali- 
fied were  authorized  to  sell  by  the  express  terms  of  the  power. 
If  the  power  survived,  there  was  no  need  of  the  aid  of  the  stat- 
ute. If  it  did  not,  the  statute  could  not  aid  the  sale,  because 
it  was  not  made  "  by  the  executors  who  took  upon  them  the 
execution  of  the  will,"  one  of  them  being  dead.  Under  such 
circumstances  the  observation  made  by  the  learned  justice  at 
the  commencement  of  his  opinion,  ought  not  to  be  regarded  as 
authority,  especially  when  taken  in  connexion  with  the  subse- 
quent cases  heretofore  mentioned. 

The  distinction  upon  which  the  court  acted  in  the  cases  of 
Wooldridge  v.  Watkins,  and  Clay  v.  Hart,  in  the  state  of 
Kentucky,  does  not  seem  to  have  been  recognized  in  any  other 
state. 

The  Pennsylvania  case  of  Zebach's  lessee  v.  Smith,  (3  Bin- 
ney,  69,)  is  against  the  Kentucky  decisions.  Bartholomew  Ze- 
bach  made  his  will,  appointing  three  executors,  and  empowered 
them  as  follows :  "  to  sell  my  land  in  Shamokin,  on  Penn's 
creek,  in  the  old  purchase,  and  to  give  good  right.  When  my 
debts  are  paid,  if  any  thing  should  remain,  my  wife  shall  buy 
two  cows,"  &c.  Two  of  the  executors  renounced  and  the 
other  conveyed  the  land.  There  was  no  imperative  direction 
to  sell.  The  counsel  for  the  plaintiff  supposed  that  case  to  differ 
from  the  one  in  hand  in  this  particular,  that  in  the  case  of  Ze- 
bach's  will  there  was  a  trust  which  the  creditors  could  have 
enforced  in  equity  ;  but  that  in  the  will  in  question  there  was 
not  such  a  trust.  But  it  seems  to  me  there  was  such  a  trust  :n 
both  cases,  and  more  plainly  so  in  (he  case  of  Morris'  will  than 
that  of  Zebach,  because  in  Morris'  will  the  power  is  given  ex- 
pressly for  the  payment  of  debts,  and  in  Zebach's  it  is  only  so 
by  inference.  The  creditors  have  an  interest  in  the  execution 
of  the  power;  and  in  case  of  a  deficiency  of  personal  estate,  it 
ceases  to  be  a  matter  of  discretion  in  the  executors  whether  to 
sell  or  not ;  it  becomes  their  duty  to  sell.  It  is  true  the  creditors 
may  have  another  remedy,  and  perhaps  a  better  one  than  a  bill 
in  equity  against  the  executor  to  enforce  the  execution  of  the 
oowcr,  to  wit,  by  application  under  the  statute  for  an  order  to 


ROCHESTER,  JUNE,  1848.  355 

Taylor  v.  Morris. 

sell.  But  that  does  not  change  the  character  of  the  power,  nor 
exonerate  the  executor  from  his  duty  to  the  creditors. 

In  Chanet  v.  Villeponteaux,  (3  M' Cord's  South  Car.  Rep.) 
the  testator  devised  his  lands  to  be  sold  at  the  discretion  of  his 
executors,  of  whom  there  were  two.  One  went  to  France  with- 
out having  qualified,  and  the  acting  executor  made  the  sale  and 
conveyance.  It  was  adjudged  to  be  a  case  within  the  21  H.  8, 
which  had  been  re-enacted  in  that  state. 

In  Wood  v.  Sparks,  (1  Dev.  fy  Bat.  N.  Car.  Rep.}  the  tes- 
tator, by  his  will,  made  three  executors,  only  one  of  whom 
qualified.  That  one,  without  the  others,  sold  and  conveyed 
the  land  under  a  power  expressed  in  these  words,  "  If  my  ex- 
ecutors should  think  it  best,  I  wish  them  to  sell  my  real  estate 
in  the  town  of  Plymouth,  to  the  best  advantage  for  the  benefit 
of  my  children."  The  conveyance  was  adjudged  to  be  a  valid 
execution  of  the  power  by  virtue  of  the  statute  21  H.  8,  ch.  4. 
It  is  true  that  no  point  appears  to  have  been  made  in  this  case 
upon  the  discretionary  character  of  the  power.  That  question 
was  not  raised,  although  the  case  occurred  more  than  twenty 
years  after  the  decision  of  the  case  of  Wooldridge  v.  Watkins. 

But  the  question  has  been  raised,  argued  and  decided  in  the 
court  of  appeals  of  Virginia,  and  the  decision  was  adverse  to 
the  rule  adopted  in  Kentucky.  It  is  worthy  of  observation  that 
the  statutes  of  Virginia  and  Kentucky,  on  this  subject,  are  pre- 
cisely alike,  excepting  that  the  statute  of  Virginia  authorizes  the 
administrator,  with  the  will  annexed,  to  execute  the  power  of 
sale  when  ail  the  executors  refuse  to  act,  in  the  same  cases  in 
which  the  acting  executor  can  execute  it  when  part  of  the  ex- 
ecutors refuse.  The  case  alluded  to  was  that  of  Brown  v.  Ar- 
mistead,  reported  in  6  Rand.  593.  The  power  of  sale  in  the 
testator's  will  was  in  these  words  :  "  My  will  and  desire  is  that 
my  executors  hereinafter  appointed,  sell,  at  public  sale,  all  my 
land,  provided  the  said  land  will  sell  for  as  much,  in  their  judg- 
ment, as  will  be  equal  to  its  value ;  and  the  money  arising 
from  such  sale  to  be  placed  in  the  hands  of  my  friend  Stark 
Armistead,  one  of  my  executors  hereafter  appointed,  whom  I 
vest  with  power  to  apply  the  said  money  to  any  use  01  uses  he 


CASES  IN  THE  COURT  OF  APPEALS. 


Taylor  v.  Morris. 


in  his  discretion  may  deem  best  for  the  benefit  of  my  wife  and 
all  my  children."  The  testator  appointed  three  executors,  all 
of  whom  refused  to  act.  The  sale  was  made  and  conveyance 
executed  by  the  administrator  with  the  will  annexed.  Judge 
Carr,  in  delivering  the  opinion  of  the  court,  says,  "  This  statute," 
(speaking  of  that  part  of  it  of  which  the  Kentucky  statute  is  a 
copy,)  "  was  taken  from  the  21  H.  8,  ch.  4,  It  was  admitted  in 
the  argument  that  if  the  testator  had  directed  a  positive  arid  un- 
conditional sale  of  the  land  by  his  executors,  the  case  would 
have  come  directly  within  the  law.  But  they  are  directed  to 
sell  provided  the  land  will  sell  for  as  much,  in  their  judgment, 
as  will  be  equal  to  its  value;  and  this,  it  is  insisted,  renders  it  a 
special  confidence  reposed  in  the  individuals  appointed  execu- 
tors, which  is  personal  to  them,  and  can  only  be  exercised  by 
them,  and  not  even  by  a  part  of  them,  but  by  the  whole  only. 
This  point  was  argued  with  great  strength,  but  the  researches 
of  the  counsel  had  enabled  him  to  produce  no  cases  in  support 
of  it,  nor  have  I  found  any."  The  power  was  adjudged  to  be 
well  executed.  The  opinion  of  the  court  was  unanimous,  ex- 
cepting that  one  of  the  five  judges  was  absent. 

The  argument  on  the  part  of  the  plaintiff  is  founded  on  the 
assumption  that  the  statute,  in  speaking  of  lands  "ordered  to 
be  sold,"  speaks  only  of  those  which  the  executors  are  peremp- 
torily commanded  to  sell.  But  that  would  be  a  strict  and  nar- 
row construction  of  a  remedial  and  beneficial  statute,  the  object 
of  which  was  to  prevent  the  failure  of  the  power,  and  to  carry 
out  the  intention  of  the  testator  as  far  as  possible  by  the  agents 
of  his  own  selection.  Although  an  authority  to  an  executor  (o 
sell  is  not  a  command  that  he  shall  sell,  it  is  substantially  an 
order  that  he  may  sell. 

The  statute  was  designed  as  a  remedy  for  the  oversight  of 
a  teslator  in  not  providing  for  the  contingency  that  some  of  his 
executors  might  refuse  to  serve ;  and  it  was  framed  upon  the 
presumption  and  belief  that  if  that  contingency  had  been  fore- 
seen, the  testator  would  have  preferred  that  one  of  his  executors 
should  execute  the  power  alone,  rather  than  it  should  fail. 
This  presumption  applies  with  as  much  force  to  the  case  of  a 


ROCHESTER,  JUNE,  1848.  357 

Taylor  v.  Morris. 

discretionary  power  as  to  one  of  a  mandatory  character.  Very 
many  testators  are  not  aware  of  the  common  law  rule,  that  in 
the  execution  of  a  joint  power  it  is  indispensable  that  all  must 
unite.  And  in  appointing  the  agents  to  execute  a  power  in- 
volving the  exercise  of  discretion,  it  is  natural  to  suppose  that 
each  one  would  be  selected  with  reference  to  his  fitness  and  ca- 
pacity for  the  trust.  This  inference  is  natural  and  fair  in  all 
cases  where  the  testator  has  not  thought  proper  to  say  expressly 
that  a  certain  number  must  unite  in  the  sale.  Gaston,  J.  in 
Wood  v.  Sparks,  (1  Dev.  $•  Bat.  392,)  says,  "  the  great  pur- 
pose of  the  statute.  (21  H.  8,  ch.  4,)  is  to  correct  mischiefs  result- 
ing from  a  rigid  construction  of  these  testamentary  authorities, 
and  it  is  the  rule  of  law  to  so  expound  the  act  as  to  suppress 
these  mischiefs  and  apply  its  remedies."  In  the  present  case 
the  power  of  sale  was  expressly  given  to  the  surviving  executor  : 
and  the  testator  thereby  manifested  his  intention  that  in  a  cer- 
tain event  the  power  might  be  executed  by  one  only  of  the  three 
donees.  It  is  true  the  event  contemplated  has  not  occurred ; 
that  is  to  say,  Willcocks  is  not  the  surviving  executor,  and 
therefore  at  common  law  the  power  could  not  be  executed  by 
him  alone  ;  but  if  the  testator  in  this  case  had  not  deemed  each 
separate  executor  capable  of  executing  the  power  alone,  he 
would  not  have  authorized  its  execution  by  the  survivor ;  and 
in  ZebacKs  lessee  v.  Smith,  Yeates,  J.  says  that  by  the  statute 
21  H.  8,  an  acting  executor  upon  the  renunciation  of  the  others 
is  put  upon  the  footing  of  a  surviving  executor.  The  statute 
in  fact  goes  further.  It  enables  the  acting  executor  to  execute 
the  power  in  those  cases  in  which  the  survivor  would  not  have 
that  authority  by  the  common  law. 

I  am  satisfied  both  on  principle  and  on  authority  that  the 
statute  should  be  held  to  extend  to  all  powers  of  sale  conferred 
on  executors,  whether  they  involve  the  exercise  of  discretion,  01 
are  peremptory  in  their  character.  Wills  may  thus  be  carried 
into  effect  according  to  their  true  intention,  when  otherwise  they 
would  be  defeated  by  circumstances  unforeseen  by  the  testator. 
The  judgment  of  the  supreme  court  and  of  the  New- York  com- 
mon pleas  should  be  reversed,  and  a  venire  de  novo  awarded. 


358  CASES  IN  THE  COURT  OF  APPEALS. 

Taylor  v.  Morris. 

JEWETT,  Ch.  J.  The  devise  did  not  pass  any  interest  in 
the  real  eslate  of  the  testator  to  the  executrix  and  executors 
named,  but  merely  conferred  on  such  of  them  as  took  letters 
testamentary  thereon  a  power  to  sell  and  convey  all  or  any  part 
of  his  real  estate,  in  case  they  in  their  opinion  should  find  it 
proper  or  most  fit  to  do  so,  to  pay  the  debts  of  the  testator. 

This  power  is  a  mere  naked  power,  not  coupled  with  any  in- 
terest whatever,  and  at  common  law  could  not  have  been  exe- 
cuted by.one  of  the  three  executors  named.  (4  Kent's  Com.  5th 
ed.  320,  n.  c.  ;  Sharpsteen  v.  Tillou,  3  Cow.  651 ;  Bergen  v. 
Bennett,  1  Caines1  Cases  in  Err.  15  ;  Jackson  v.  Schauber,  7 
Cowen,  187.)  And  now  by  statute,  (1  R.  S.  735,  §  112,)  when 
a  power  is  vested  in  several  persons  all  must  unite  in  its  execu- 
tion, unless  previous  to  its  execution  one  or  more  of  such  per- 
sons shall  die ;  in  that  case  the  power  may  be  executed  by  the 
survivor  or  survivors.  But  this  provision  is  limited  and  con- 
trolled by  the  provisions  of  the  statute.  (2  R.  S.  109,  §  55.)  It 
is,  however,  contended  that  this  statute  does  not  affect  the  ques- 
tion, on  (he  ground  that  the  estate  is  not  ordered,  but  merely 
authorized  to  be  sold,  upon  the  contingency  that  the  three  ex- 
ecutors named,  or  the  survivor  of  them,  should  in  their  opinion 
find  it  proper  or  more  fit  to  sell  it  for  the  purpose  of  paying  the 
testator's  debts,  and  that  the  statute  only  operates  upon  and 
makes  valid  conveyances  of  land  made  by  one  of  several  execu- 
tors in  the  case  mentioned,  where  the  testator  commands  or 
imperatively  directs  a  sale  lobe  made  ;  and  does  not  extend  to 
the  case  where  a  sale  is  merely  permitted  or  authorized  in  the 
discretion  of  his  executors. 

The  statute  was  passed  to  remedy  the  inconvenience,  where 
some  of  the  executors  refuse  or  neglect  to  act,  as  executors ;  by 
reason  of  which  such  power  conferred  could  not,  by  the  princi- 
ples of  the  common  law,  be  executed  ;  as  all  were  required  to 
concur  in  the  act  authorized  to  be  done.  The  mischief  is  the 
same  in  effect,  in  the  case  where  the  testator  has  by  his  will 
authorized  his  executors  in  their  discretion  to  sell  his  lands  to 
pay  his  debts,  &c.  when  some  of  his  executors  neglect  or  refuse 
to  take  upon  themselves  the  execution  of  his  will,  as  in  tb* 


ROCHESTER,  JUNE,  1848.  359 


Moore  r.  DCS  Arts. 


case  where  the  same  act  is  commanded  or  ordered  to  be  done ; 
and  I  think  that  the  statute  should  receive  a  liberal  construc- 
tion, such  as  will  suppress  the  mischief  and  advance  the  rem- 
edy, which  is  to  render  sales  made  under  such  power  or  authority 
by  the  executor  or  executors  who  do  take  upon  them  the  exe- 
cution of  such  will  equally  valid  as  if  all  of  the  executors  named 
in  the  will  had  joined  in  the  sale.  It  is  by  no  means  unusual, 
in  construing  a  remedial  statute,  to  extend  the  enacting  words 
beyond  their  natural  import  and  effect,  in  order  to  include  cases 
within  the  same  mischief.  (Dwarris  on  Stat.  735.)  My  con- 
clusion is  that  Willcocks  had  power  under  the  will  to  convey 
the  real  estate  of  the  testator,  without  the  concurrence  of  his 

co-executor  named  in  the  will. 

Judgment  reversed. 


MOORE,  appellant,  vs.  DES  ARTS,  respondent. 

The  defendant  imported  into  the  city  of  New- York  goods  on  which  the  collector  of 
customs  exacted  and  received  duties.  The  goods  were  by  law  entitled  to  a  draw- 
back of  the  duties  in  case  they  were  exported  within  three  years.  The  defendant 
sold  the  goods  to  the  plaintiff  at  the  "  long  price,"  which  by  custom  and  agreement 
included  the  amount  of  duties  paid,  and  carried  to  the  purchaser  the  right  to  the 
drawback.  Afterwards,  and  while  the  plaintiffs  yet  owned  the  goods  and  could 
export  them  so  as  to  get  the  drawback,  or  could  sell  them  in  market  at  the  "long 
price,"  the  secretary  of  the  treasury  decided  that  goods  of  that  kind  were  duty  free, 
and  thereupon  the  duties  were  refunded  to  the  importer.  In  consequence  of  such 
decision  tbe  right  to  a  drawback  was  extinguished,  and  the  market  price  of  the 
article  was  immediately  reduced  by  about  the  amount  of  duties  which  had  been 
exacted.  Held,  on  bill  filed  to  recover  the  amount  of  duties  returned  to  the  defen- 
dant, there  being  no  fraud  in  the  case,  and  no  warrranty  that  the  goods  were  du- 
tiable, and  no  allegation  that  the  plaintiff  intended  to  export  the  goods,  that  the 
plaintiff  could  not  recover. 

Quere,  whether,  in  case  the  plaintiff  had  a  right  to  recover  the  money,  the  remedy 
would  not  be  at  law. 

APPEAL  from  chancery.  Moore  filed  his  bill  before  the  vice 
chancellor  of  the  first  circuit  against  Des  Arts,  stating  the  case 
m  substance  as  follows  :  In  February,  1 344.  the  defendant  irr> 


360  CASES  IN  THE  COURT  OF  APPEALS. 


Moore  v.  Des  ArU, 


ported  into  the  city  of  New- York  56,540  pounds  of  spelter,  (a 
species  of  zinc,)  on  which  the  collector  at  the  port  of  New- York 
exacted,  and  was  paid  by  the  importer,  the  sum  of  $'565,40,  foi 
the  duties,  being  twenty  per  cent  ad  valorem.  The  spelter  was 
entitled  to  a  drawback  of  the  whole  amount  of  duties  in  case 
it  should  be  exported  within  three  years.  By  usage  and  custom 
among  merchants  in  New- York  there  are  two  modes  of  selling 
merchandise,  so  entitled  to  drawback  ;  one  at  the  "  long  price," 
the  other  at  the  "  short  price."  By  a  sale  at  the  "  long  price" 
is  meant  a  sale  at  the  full  market  value,  including  the  amount 
paid  for  duties,  so  that  the  right  to  the  drawback  or  return  of 
duties  is  transferred  to  the  purchaser,  who  receives  back  the 
duties  in  case  he  exports  the  article.  By  the  "  short  price"  of 
such  goods,  is  meant  a  price  less  than  the  "  long  price"  by 
about  the  amount  of  duties  paid,  and  the  purchaser  at  the 
"  short  price"  is  bound  to  export  the  goods  so  as  to  entitle  them 
to  the  drawback  which  the  importer  receives;  or  in  case  the 
purchaser  at  the  "  short  price"  does  not  export  them,  then  he  is 
bound  himself  to  pay  to  the  importer  the  amount  of  the  drawback. 
After  the  spelter  was  imported,  the  complainant  bought  it  of 
the  defendant  at  the  "  long  price,"  being  6£  cents  per  pound, 
amounting  in  all  to  $3675,10.  The  "short  price"  at  the  time 
of  such  purchase  was  5£  cents  per  pound  ;  so  that  the  di (Ter- 
ence, (one  cent  on  each  pound,)  would  be  $565,40,  the  amount 
of  duties  paid.  After  the  purchase  by  the  complainant,  and  in 
September,  1844,  the  secretary  of  the  treasury  decided  that 
spelter  was  free  from  duty,  under  the  name  of  " teutcnc.quc" 
in  the  act  of  congress.  And  thereupon  the  sum  of  ,$'5()5,40. 
being  the  amount  of  duties  which  the  defendant  had  paid  on 
the  importation  of  the  spoiler  in  question,  was  refunded  to  him. 
The  spelter  was  yet  owned  by  the  complainant,  and  in  a  con- 
dition to  be  exported,  so  as  to  entitle  it  to  the  drawback ;  but, 
as  the  bill  alleged,  by  the  decision  of  the  secretary  of  the  treas- 
ury, the  right  to  the  drawback  on  exporting  the  goods,  was  lost 
and  extinguished,  and  by  the  same  cause  the  price  of  the  arti- 
cle was  immediately  reduced  by  about  the  amount  of  duties 
paid,  and  the  article  could  no  longer  be  sold  at  the  ''•  long  price." 


ROCHESTER,  JUNE,  1848.  351 


Moore  v.  Des  Arts. 


The  bill  further  stated,  that  as  soon  as  the  decision  of  the 
secretary  was  made  known,  the  complainant  requested  the 
defendant  to  furnish  him  with  the  proper  authority  to  receive 
the  return  duties  at  the  custom  house,  which  the  defendant  re- 
fused to  do ;  also,  that  after  the  defendant  received  such  duties, 
the  complainant  demanded  that  the  same  be  paid  over  to  him, 
which  payment  the  defendant  also  refused.  The  bill  claimed 
to  recover  the  said  sum  of  $565,40.  There  was  no  allegation 
that  the  complainant  ever  intended  to  export  the  spelter,  or 
that  he  would  have  exported  it,  so  as  to  obtain  the  drawback. 

The  defendant  demurred  to  the  bill  for  want  of  equity,  and 
his  demurrer  was  overruled  by  the  vice  chancellor,  whose  de- 
cision was  reversed  by  the  chancellor  on  appeal,  and  the  bill 
was  ordered  to  be  dismissed.  The  complainant  appeals  to  this 
court. 

H.  S.  Dodge,  for  the  appellant.  The  case  presented  by  the 
bill  entitles  the  plaintiff  to  the  relief  prayed,  whether  the  spelter 
was  charged  with  the  duties  correctly  or  illegally.  Assuming 
the  duties  to  have  been  improperly  exacted,  it  is  a  case  of  mu- 
tual mistake.  Both  parties  assumed  and  expressly  agreed,  that 
the  article  was  dutiable,  would  be  entitled  to  drawback,  and  on 
such  assumption  the  contract  for  sale  at  the  "  long  price"  was 
made.  This  (if  a  mistake)  was  a  mistake  of  fact,  not  of  law. 
The  question  of  fact  being  what  was  the  meaning  of  "  teute- 
neque"  in  the  act  of  congress.  The  decision  of  the  collector  of 
the  customs  as  to  this  fact  could  not  be  reviewed. 

But  if  the  duties  exacted  were  payable  as  the  parties  suppo- 
sed them  to  be,  then  the  plaintiff  was  deprived,  by  the  exercise 
of  the  discretion  of  the  secretary  of  the  treasury,  of  an  advantage 
for  which  he  expressly  contracted  and  paid  ;  the  literal  perform- 
ance of  so  much  of  the  defendant's  contract  as  required  him  to 
receive  the  drawback  as  trustee  for  the  plaintiff  has  been  pre- 
vented, but  the  defendant  has  received  an  indemnity  which  he 
holds  as  trustee  for  the  plaintiff  in  the  same  manner  as  he 
would  have  held  the  drawback  if  it  had  been  received.  Here 
is  not  only  a  failure  of  consideration  by  accident,  but  at  the 

Vnr      T     "  46 


362  CASES  IN  THE  COURT  OF  APPEALS. 

Moore  t>.  DCS  Arts. 

same  time,  a  receipt  of  an  indemnity,  and  precisely  within  the 
maxim  "  neminem  cum  alterius  detrimento  fieri  locupletiorem? 
(1  Story's  Eq.  Jur.  §  472,  473  ;  Quick  v.  Stuyvesant,  2  Paige, 
84  ;  Chase  v.  Barrett,  4  id.  148  ;  Hachett  v.  Pattle,  6  Madd. 
4 ;  May  v.  Bennett,  1  Russ.  370.) 

The  plaintiff  is  the  purchaser  and  assignee  of  the  defendant's 
right  to  any  return  of  the  duties,  as  well  to  an  indemnity  for 
the  drawback,  as  to  the  drawback  itself,  and  his  equity  is  like 
that  of  the  complainant  in  Randal  v.  Cochran,  (1  Vcs.  sen.  98  ;) 
Wood  v.  young,  (5  Wend.  620  ;)  New-  York  Ins.  Co.  v.  Ron- 
let,  (24  id.  505  ;)  S.  C.  by  the  name  of  Varet  v.  New-  York  Ins. 
Co.  (7  Paige,  561 ;)  Heard  v.  Bradford,  (4  Mass.  R.  326 ;)  8 
id.  340 ;  3  id.  443 ;  2  Denio,  224 ;  4  Hill,  635. 

The  remedy  is  not  exclusively  at  law  ;  if  there  be  any  reme- 
dy at  law  it  is  the  equitable  action  for  money  had  and  received. 
This  action  is  a  substitute  for  a  bill  of  equity,  and  assumes  a 
concurrent  jurisdiction  in  equity,  and  courts  of  equity  have  not 
lost  their  jurisdiction  because  the  law  courts  have  extended 
theirs.  (2  Story's  Eq.  Jar.  §  1255,  1256.) 

D.  Lord,  for  the  respondent.  I.  The  merchandize,  spelter, 
was  not  in  law  dutiable ;  and  so  was  not  within  the  usage  al- 
leged as  to  debenture  goods. 

II.  Both  parties  are  to  be  deemed  conversant  of  the  commer- 
cial name  of  the  article,  and  then,  whether  dutiable  or  not,  was 
a  question  of  law  ;   the  parties  contracting  in  knowledge  of  the 
law  and  fact,  are  silent  as  to  the  sum  exacted  as  a  duty  ;  it  is 
ihe  vendor's  money,  and  the  vendee,  without  a  contract  for  it, 
cannot  claim  it. 

III.  The  contract  of  sale  merely,  (without  any  mistake  of 
fact,  or  fraud,  or  contract  for  the  amount  exacted,)  docs  not  car- 
ry with  it  any  obligation  of  refunding  any  part  of  the  supposed 
components  of  the  cost  of  the  goods. 

IV.  If  the  contract  of  sale,  by  its  nature  or  the  usage  alleged, 
contains  an  agreement  to  refund  any  part  of  the  cost,  then 
the  remedy  is  at  law  ;  here  being  neither  trust,  mistake,  acci- 


ROCHESTER,  JUNE,  1848.  353 


Moore  r.  Des  Arts. 


dent  or  fraud,  and  no  ground  of  jurisdiction  for  discovery  or 
account. 

BRONSON,  J.  The  case  made  by  the  bill  amounts  to  this  ; 
and  nothing  more.  The  defendant  imported  the  spelter,  and 
paid  the  duties  which  were  demanded  by  the  government. 
The  property  was  then  sold  to  the  complainant  at  the  "  long 
price,"  or  full  market  value,  which,  according  to  the  alleged 
usage  in  the  city  of  New- York,  and  the  intention  of  the  parties, 
gave  the  complainant  a  right  to  the  drawback,  in  case  the  goods 
should  be  exported  at  such  time  and  in  such  manner  as  to  en- 
title them  to  a  drawback.  While  the  goods  still  remained  in  a 
condition  in  which  they  might  have  been  exported  and  the  draw- 
back secured,  the  secretary  of  the  treasury  decided,  that  the 
goods  were  free  from  duty  ;  and  thereupon  the  money  which 
had  been  wrongfully  demanded  of  the  defendant  when  he  im- 
ported the  spelter,  was  refunded  to  him  by  the  government. 
Immediately  on  publishing  the  decision  of  the  secretary  of  the 
treasury,  the  right  to  obtain  the  drawback  on  exporting  the 
goods  was  lost ;  and  the  complainant  also  lost  the  right  and 
opportunity  of  obtaining  an  equivalent  for  the  drawback  by  re- 
selling the  goods  at  the  "long  price" — the  market  value  of  the 
goods  being  reduced  by  about  the  amount  of  the  duties.  On 
this  case,  the  complainant  insists,  that  the  money  which  was 
refunded  to  the  defendant  belongs  to  him. 

Although  (here  is  a  seeming  equity  in  favor  of  4he  complain- 
ant, I  have  not  been  able  to  discover  any  principle  upon  which 
his  claim  can  be  supported.  There  was  no  warranty  when  the 
complainant  purchased  that  the  goods  were  dutiable ;  and  no 
fraud  of  any  kind  is  imputed  to  the  defendant.  So  far  as  ap- 
pears, the  parties  dealt  upon  equal  terms,  each  knowing  all 
that  was  known  by  the  other.  As  the  government  officers  have 
decided  both  ways  on  the  question  whether  the  spelter  was  sub- 
ject to  duties,  it  may  fairly  be  presumed  that  these  merchants 
knew  that  was  a  debateable  question  ;  they  knew  that  the  de- 
cision which  had  been  made  by  the  collector  might  be  overruled 
by  the  secretary  of  the  treasury,  and  the  duties  be  refunded  to 


364  CASES  IN  THE  COURT  OF  APPEALS. 

Moore  v.  Des  Arts. 

the  importer.  With  this  knowledge  the  defendant  sold,  and 
the  complainant  purchased  the  spelter,  with  a  right  to  the 
drawback,  should  that  right  ever  become  perfect.  But  there 
was  no  sale  or  purchase  of  the  duties  in  case  they  should  be 
refunded  by  the  government,  on  the  ground  that  the  goods  were 
not  dutiable.  At  the  time  of  the  sale,  there  were  two  contin- 
gencies in  which  the  duties  might  be  restored  to  the  importer : 
he  might  receive  them  as  a  drawback  on  exporting  the  goods ; 
or  the  money  might  be  refunded  on  the  ground  that  it  was  im- 
properly demanded  at  the  first.  The  complainant  purchased 
the  right  to  the  drawback  ;  but  he  did  not  purchase  the  other 
right.  And  I  do  not  see  how  we  can  give  it  to  him  without 
making  a  contract  for  the  parties. 

The  argument  for  the  complainant  goes  upon  the  ground, 
that  he  purchased  the  right  to  the  duties  should  they  be  restored 
by  the  government  for  any  cause.  But  that  is  not  the  case 
made  by  the  bill.  He  only  purchased  a  right  to  the  duties  in 
case  they  should  be  restored  as  a  drawback  on  exporting  the 
goods. 

There  is  no  allegation  that  the  defendant  did  any  act  which 
deprived  the  complainant  of  the  right  to  the  drawback.  On 
tKe  contrary,  the  allegation  is.  that  the  right  was  lost  to  tho 
complainant  immediately  on  the  making  and  publication  of 
the  decision  of  the  secretary  that  the  goods  were  free  from  duty. 
And  such  was  evidently  the  necessary  consequence  of  the  de- 
cision. The  right  of  drawback  was  at  an  end,  whether  the 
defendant  received  the  money  which  the  government  offered 
to  refund,  or  not.  And  the  decision  that  such  goods  were  free, 
would  of  course  reduce  their  market,  value  by  about  the  amount 
which  had  before  been  charged  for  duties. 

There  is  a  further  difficulty  in  the  case.  The  bill  contains 
no  allegation  that  the  complainant,  at  the  time  the  secretary 
made  his  decision,  intended  to,  or  would  have  exported  the- 
goods,  if  the  duties  had  not  been  refunded  ;  nor  that  he  could 
have  sold  the  property  to  any  one  else  for  the  purpose  of  expor- 
tation ;  nor  that  the  goods  then  bore  a  higher  price  in  any  for- 
eign market  than  they  did  in  our  own.  Nor  does  it  appear  in 


ROCHESTER,  JUNE,  1848.  355 

Winter  c.  Kinney. 

any  other  way,  that  the  complainant  lost  any  thing  of  value, 
oy  losing  the  right,  which  he  purchased,  to  the  drawback  on 
exporting  the  goods.  The  fall  in  the  market  value  of  the  prop- 
erty did  not  result  from  the  loss  of  the  right  of  drawback  ;  but 
was  the  natural  consequence  of  the  decision  of  the  government 
that  the  goods  were  not  subject  to  duties. 

I  am  of  opinion  that  the  decree  of  the  court  of  chancery  is 

nght,  and  should  be  affirmed. 

Decree  affirmed. 


o 

WINTER  vs.  KINNEY.  ^ 

16 

The  policy  of  the  law  in  declaring  void  bonds,  agreements,  &c.  taken  by  sheriffs  and       28 
other  officers  colore  qfficii  not  in  conformity  with  statute,  is  to  guwd  against  official 
oppression  on  the  one  side,  and  a  lax  performance  of  duty  to  the  injury  of  the       gQ 
plaintiff  in  the  process  on  the  other.  80 

An  agreement  made  with  a  sheriff  by  which  a  party  under  arrest  is  permitted  to  go      e°"* 
at  large  upon  any  terms  other  than  those  prescribed  by  statute  is  void.     And  so  is 
any  agreement  taken  from  a  party  in  custody  intended  as  an  indemnity  to  the 
sheriff  for  a  breach  of  duty. 

But  the  prohibition  extends  only  to  the  officer,  and  not  to  the  plaintiff  in  the  process. 
Therefore,  where  a  party  under  arrest  was  permitted  to  go  at  large,  upon  deposit- 
ing with  a  third  person  the  sum  of  money  for  which  he  was  arrested,  under  an 
agreement,  that  if  he  did  not  surrender  himself  at  a  given  time,  the  money  might 
be  paid  over  to  the  plaintiff  in  the  process ;  held,  in  an  action  to  recover  back  the 
money  from  the  person  with  whom  it  was  deposited,  that  the  question  was,  whether 
the  agreement  was  made  with  the  officer,  or  with  the  plaintiff  at  whose  suit  the 
arrest  was  made ;  and  upon  the  evidence,  that  question  directed  to  be  submitted 
to  the  jury. 

ON  error  from  the  supreme  court.  Kinney  brought  assumpsit 
against  Andrew  Winter  in  the  supreme  court,  and  declared  for 
money  had  and  received  to  his  use.  The  defendant  pleaded 
the  general  issue,  and  the  cause  was  tried  at  the  New- York 
circuit,  before  EDMONDS,  circuit  judge,  in  May,  1845.  It  ap- 
peared on  the  trial,  that  the  plaintiff,  who  was  a  contractor  on 
the  New- York  and  Erie  rail-road  near  the  line  of  New- Jersey, 
was  arrested  in  the  fall  of  1840,  by  John  A.  Winter,  a  deputy 


366  CASES  IN  THE  COURT  OF  APPEALS. 

Winter  v.  Kinnej. 

of  the  sheriff  of  the  county  of  Bergen  in  New- Jersey,  at  th« 
suit  of  one  Wanmaker.  The  arrest  took  place  on  a  Saturday 
evening,  between  the  hours  of  seven  and  ten  o'clock,  within 
the  state  of  New- Jersey.  The  plaintiff,  on  being  arrested, 
agreed  with  the  defendant,  that  if  he  would  become  his  bail 
until  Monday  morning,  he  would  deposit  with  him  $340,  that 
being  the  amount  for  which  he  was  required  to  give  bail ;  and 
in  case  he  failed  to  surrender  himself  to  the  deputy  on  Monday 
morning,  or  settle  with  Wanmaker,  then  that  the  defendant 
should  pay  the  money  over  to  Wanmaker.  Under  this  agree- 
ment the  plaintiff  deposited  with  the  defendant  $340,  being  the 
money  for  which  this  suit  was  brought.  Before  daylight  on 
Monday  morning  the  plaintiff  offered  to  surrender  himself  and 
demanded  the  money  ;  but  the  defendant  and  the  deputy  refused 
to  accept  the  surrender  at  that  time,  alleging  that  he  was  not 
to  surrender  himself  until  after  daylight.  The  evidence  was 
conflicting  as  to  the  hour  on  Monday  morning  when  the  sur- 
render was  to  be  made,  and  it  did  not  appear  that  the  plaintiff' 
made  any  other  offer  to  surrender  himself.  The  defendant 
paid  the  money  over  to  Wanmaker  on  being  indemnified.  One 
of  the  witnesses  testified  that  Wanmaker  was  present  a  part 
of  the  time  when  the  agreement  was  made,  and  that  the  plain- 
tiff and  Wanmaker  on  the  same  occasion  conversed  respecting 
Wanmakcr's  claim.  Another  witness  testified  that  one  of  the 
persons  present  began  to  draw  a  bail  bond ;  that  the  plaintiff 
remarked  it  was  not  worth  while  to  be  at  the  trouble  and  ex- 
pense of  drawing  it,  because  he  would  sec  Wanmaker  on  Mon- 
day morning,  and  would  arrange  the  matter  with  him,  and 
there  would  be  the  end  of  it ;  that  it  was  all  understood  be- 
tween them. 

The  circuit  judge  ruled  that  the  agreement  under  which  tho 
$340  was  deposited  was  void  ;  that  there  were  no  questions  of 
fact  for  the  jury  to  pass  upon,  and  that  the  plaintiff  was  entitled 
to  recover.  The  defendant  excepted.  Verdict  for  the  plaintiff. 
A  motion  for  a  new  trial  was  denied  by  the  supreme  court,  and 
judgment  rendered  for  the  plaintiff. 


ROCHESTER,  JUNE,  1848.  357 

Winter  v.  Kinney. 
G.  R.  J.  Bowdoin,  for  plaintiff  in  error. 

Wm.  Curtis    Noyes,  for  defendant  in  error. 

WRIGHT,  J.  An  agreement  made  with  a  sheriff,  or  other 
public  officer,  to  obtain  an  indulgence  not  authorized  by  law  to 
a  party  under  arrest,  or  in  contemplation  of  the  escape  of  such 
party  ;  or  the  taking,  by  such  officer,  from  a  party  in  custody, 
an  obligation  or  security  not  sanctioned  by  statute,  for  the  ease 
and  favor  of  the  prisoner,  and  as  an  indemnity  for  a  breach  of 
duty  on  the  part  of  such  officer ;  has  uniformly  been  held  void 
under  the  statute  of  23  Henry  6,  chapter  9,  in  England,  in 
this  state,  and  in  other  states  of  the  Union  in  which  that  stat- 
ute has  been  in  substance  re-enacted  ;  at  least,  when  such  agree- 
ments or  securities  have  been  prosecuted  by  the  officer  himself, 
or  in  the  name  of  others  for  his  benefit,  or  where  the  attempt 
has  been  made  to  set  up  or  enforce  them  for  his  relief  or  protec- 
tion. (IT.  R.  418 ;  7  id.  109  ;  7  John.  R.  159  ;  id.  436  ;  8  id. 
76;  5  Wend.  61;  19  id.  188;  1  Southard,  319;  2  id.  811.) 
At  common  law,  undoubtedly,  independent  of  the  statute,  if 
the  agreement  made  or  security  taken  colore  officii  contemplate 
an  indemnity  for  the  fraudulent  escape  of  the  party  arrested,  or 
for  any  act  inconsistent  with  the  duty  of  the  officer,  whereby 
either  official  oppression,  or  injury  to  the  plaintiff  in  the  suit 
may  result,  such  agreement  or  security  is  void.  The  statute  of 
New- Jersey  is  substantially  a  re-enactment  of  that  of  23  Henry 
6.  It  provides  that  no  sheriff,  under  sheriff,  coroner,  jailer,  or 
other  officer  that  may  have  a  party  in  custody,  "  shall  take  or 
make,  or  cause  to  be  taken  or  made,  any  obligation"  for  letting 
out  of  prison,  or  from  arrest,  by  virtue  of  any  writ,  process  or 
warrant,  in  any  personal  action,  or  by  reason  of  any  indictment 
for  trespass,  "  or  by  color  of  his  or  their  office,  of  any  person,  or 
by  any  person,  by  course  of  law,  but  only  to  themselves  respect- 
ively, and  by  the  name  of  their  office,  and  upon  condition  writ- 
ten, that  the  said  prisoner  shall  appear  at  the  clay  and  place 
mentioned  and  contained  in  the  said  writ,  process  or  warrant." 
(Elm.  Dig:  239;  Laws  of  N.  J.  1796.)  The  only  mode  in 


368  CASES  IN  THE  COURT  OF  APPEALS. 

Winter  ».  Kinney. 

which  the  officer  can  discharge  from  arrest,  is  that  prescribed  bj 
statute ;  nor  can  he  take  any  obligation  or  security  from  the 
party  in  custody,  conditioned  otherwise  than  for  his  appearance 
at  the  day  and  place  mentioned  in  the  process.  Should  he  do 
so,  the  act  being  without  authority,  he  would  not  be  protected 
against  the  party  at  whose  suit  the  arrest  was  made,  and  the 
agreement  or  security  being  without  consideration,  so  far  as  the 
officer  was  concerned,  could  not  be  enforced  by  him.  The  ef- 
fect, therefore,  is  to  render  such  agreement  or  security  in  the 
hands  of  the  officer,  or  when  attempted  to  be  enforced  for  his 
protection  or  benefit,  utterly  void.  The  policy  of  the  law  in 
declaring  void  agreements  and  securities  not  taken  in  conform- 
ity to  the  statute,  when  attempted  to  be  set  up  and  enforced  by 
the  officer,  is  to  guard  against  official  oppression  on  the  one 
side,  and  a  lax  performance  of  duty,  to  the  injury  of  the  plain- 
tiffin  the  process,  on  the  other.  I  would  not  be  understood  as 
saying  that  a  public  officer  may  not,  under  any  circumstances, 
take  a  security  unless  it  be  one  authorized  by  statute  law. 
There  are  a  variety  of  securities  taken  by  the  officers  referred 
to  in  the  New- Jersey  statute,  valid  at  common  law,  but  not 
embraced  within  any  statutory  enactment.  But  where  a  party 
is  in  custody,  and  the  officer,  instead  of  taking  the  obligation 
for  his  release  specifically  prescribed  by  statute,  takes  one  at 
his  own  volition,  more  or  less  onerous  to  the  prisoner,  he  asserts, 
by  virtue  of  his  office,  an  illegal  claim  of  right  or  authority 
to  take  it.  He  takes  it  color e  ojficii.  "  Color  of  office,"  says 
Tomlin,  "  is  when  an  act  is  evilly  done  by  the  countenance 
of  an  officer;  and  is  always  taken  in  the  worst  sense,  being 
grounded  upon  corruption,  to  which  the  office  is  a  mere  shadow 
or  color." 

But  the  statute  is  confined  to  public  officers  ;  and  hence  a 
distinction  is  to  be  observed  between  agreements  made  by  offi- 
cers colore  nfficii,  and  those  with  the  party  at  whose  suit  the 
arrest  is  made.  The  latter  may  make  such  agreement  or  take 
such  security  as  he  pleases,  on  discharging  his  debtor  from  ar- 
rest. In  Hall  v.  Carter,  (2  Mod.  304,)  it  was  said,  though  a 
sheriff  cannot  take  a  bond  in  any  other  form  than  that  prescri- 


ROCHESTER,  JUNE,  1848.  359 

Winter  ».  Kinney. 

bed  by  statute,  the  party  himself  may ;  and  this  doctrine  was 
affirmed  in  Rogers  v.  Reeves,  (1  T.  R.  422,)  and  Fuller  v. 
Prest,  (7  T.  R.  109)  The  party  may  also  agree  or  consent 
that  the  prisoner  shall  go  at  large  on  a  deposit  of  money  to  dis- 
charge his  debt,  or  dispensing  with  the  bail  bond,  may  accept 
his  own,  or  the  undertaking  of  another,  that  he  will  appear. 
But  in  these  cases,  the  officer  must  not  be  a  party  in  any  way 
beneficially  interested  in  the  agreement  or  security. 

There  is  but  a  single  question  in  this  case.  If  the  agreement 
set  up  was  made  with  the  deputy  sheriff,  John  A.  Winter,  through 
his  brother  Andrew,  in  contravention  and  evasion  of  the  stat- 
ute, it  was  void ;  and  Kinney  having  parted  with  his  money 
without  consideration,  it  still  belongs  to  him.  On  the  other 
hand,  if  the  contract  was  made  with  Wanmaker,  the  plaintiff 
in  the  writ,  or  with  his  assent  and  for  his  benefit,  and  the 
sheriff  was  no  party  to  it,  it  was  upon  sufficient  consideration, 
and  legal. 

The  circuit  judge  decided  that  the  defendant,  Andrew  Win- 
ter, had  not  sustained  his  defence,  and  that  it  ought  not  to  be 
submitted  to  the  jury ;  and  he  charged  the  jury  "  that  there 
were  no  questions  of  fact  for  them  to  decide,  and  that  the  plain- 
tiff was  entitled  to  recover,  because  the  agreement  on  which  the 
money  was  deposited  was  without  consideration  and  void ;" 
thus  withdrawing  from  their  consideration  the  question  whether 
the  agreement  had  been  made  with  Wanmaker,  the  creditor, 
or  with  the  sheriff,  and  assuming  to  decide  himself,  from  the 
evidence,  that  it  was  with  the  latter.  In  this  I  think  he  erred. 
Whether  the  agreement  was  void  or  not,  depended  upon  the 
question  of  fact  whether  it  had  been  made  with  the  sheriff  or 
with  Wanmaker,  the  plaintiff  in  the  writ.  In  this  case,  this 
was  a  question,  with  proper  instructions  as  to  the  law,  for  the 
jury.  There  was  some  evidence,  at  least,  favoring  the  idea 
that  Wanmaker  was  a  party  to  the  agreement,  or  that  it  was 
made  for  his  benefit,  and  by  his  authority  and  consent.  He 
was  present  part  of  the  time  whilst  Kinney  was  under  arrest, 
and  he  conversed  with  Kinney  respecting  his  claim.  Kinney 

VOL.  I.  47 


370  CASES  IN  THE  COURT  OF  APPEALS. 

Winter  r.  Kinnoy. 

spoke  of  seeing  him  on  Monday  morning,  according  to  the  terms 
of  the  agreement,  with  the  view  of  arranging  his  debt,  and  re- 
marked "  that  it  was  all  understood  between  them."  Wanma- 
ker  sent  a  message  to  Kinney  to  meet  him  for  settlement  on 
Monday  morning,  showing  that  he  understood  the  agreement, 
and  assented  to  it  at  the  time  it  was  made,  or  subsequently ; 
and  Wan  maker  afterwards  received  the  money  that  had  been 
deposited.  These  facts,  in  connection  with  the  other  evidence 
in  the  case,  may  have  failed  to  satisfy  the  jury  that  Wanma- 
ker,  and  not  the  sheriff,  was  a  party  to  the  agreement,  but  they 
were  not  so  weak  and  irrelevant  as  to  justify  the  court  in  au- 
thoritatively withholding  them  from  their  consideration.  It  is 
peculiarly  the  province  of  the  jury  to  reconcile  conflicting  testi- 
mony, and  settle  disputed  questions  of  fact. 

On  a  new  trial,  should  the  jury  find  that  the  agreement  was 
made  with  the  sheriff,  or  that  he  was  a  party  in  any  way  ben- 
eficially interested  in  it,  it  will  not  be  necessary  to  pursue  the 
further  inquiry,   whether  it  had  been  substantially  complied 
with  by  Kinney,  as  it  would  be  unauthorized  and   void ;  but 
should  they  find  that  it  was  made  with  Wanmaker,  the  credi 
tor,  then  the  question  of  performance  by  Kinney  would  neces 
sarily  arise. 

At  the  trial  the  defendant  offered  to  show  the  amount  and 
consideration  of  the  debt  of  Wanmaker  against  Kinney — that 
the  same  was  a  just  debt  for  three  hundred  and  fifty  dollars, 
and  had  been  so  admitted  by  Kinney,  and  agreed  to  be  paid  by 
him.  To  which  evidence,  so  offered,  the  plaintiff  objected, 
stating  that  if  he  was  permitted  to  go  into  such  evidence,  he 
was  ready  to  show  that  he  did  not  owe  Wanmaker,  or  if  any 
thing,  but  a  small  sum,  not  exceeding  ten  dollars.  The  cir- 
cuit judge  refused  to  allow  or  permit  the  defendant  to  give  any 
evidence  concerning  the  debt  due  from  Kinney  to  Wanmaker. 
In  this  I  think  lie  was  right.  It  was  clearly  an  attempt  to 
throw  into  the  case  an  irrelevant  and  impertinent  issue. 

Upon  the  ground,  therefore,  that  there  was  a  question  of  fact 
in  the  case  that  should  have  been  submitted  to  the  considera- 


ROCHESTER,  JUNE  1848.  371 

Deraismes  v.  The  Merchants'  Mutual  Ins.  Co. 

tion  of  the  jury,  I  am  of  the  opinion  that  the  judgment  of  the 
supreme  court  should  be  reversed,  and  a  venire  de  Jiovo  award- 
ed, costs  to  abide  the  event. 

Judgment  reversed. 


371 

3  '292 
e  4          '54 

4  *448 

DERAISMES  and  others  vs.  THE  MERCHANTS'  MUTUAL  IN-    \Q         1324 

SURANCE  COMPANY.  16 

24         '313 
167  2304 

Where  the  charter  of  a  mutual  insurance  company  authorized  such  company,  "for   167  2306 

the  better  security  of  its  dealers,"  to  receive  premium  notes  in  advance,  of  persons  2  AbD^38S 
intending  to  take  policies,  and  to  negotiate  such  notes  for  the  purpose  of  paying 
claims  or  otherwise,  in  the  course  of  its  business,  and  to  pay  to  the  makers  of  such 
notes  a  compensation  not  exceeding  five  per  cent,  per  annum,  on  so  much  of  the 
notes  as  exceeded  the  premiums  on  policies  actually  taken  ;  field,  that  a  note  taken 
by  the  company  in  pursuance  of  its  charter  for  premiums  in  advance,  was  valid 
and  effectual  for  the  whole  face  thereof,  although  the  premiums  on  insurances  ac- 
tually received  by  the  maker,  amounted  to  only  a  part  of  such  note. 

It  seems,  that  a  note  so  given,  is  valid  by  force  of  the  statute  authorizing  it  to  be 
taken,  and  therefore  that  a  partial  failure  of  consideration  cannot  be  set  up  to  de- 
feat a  recovery  of  the  full  amount. 

But  if  a  consideration  is  necessary,  the  concurrence  of  others  in  giving  similar  notes 
for  the  purpose  of  giving  a  credit  to  the  company  in  pursuance  of  an  agreement 
entered  into  by  all  the  makers,  the  contemplated  advantages  of  insurance  in 
such  company,  and  the  compensation  authorized  to  be  paid  to  the  makers  on  such 
an  amount  as  the  notes  should  exceed  the  premiums  on  insurances  actually  taken, 
constitute  a  sufficient  consideration  to  uphold  such  a  note. 

THE  Merchants'  Mutual  Insurance  Company  brought  as 
sumpsit  in  the  superior  court  of  the  city  of  New- York,  against 
Deraismes  &  Boizard,  upon  a  promissory  note  made  by  them, 

as  follows : 

«  $2785,05.  New- York,  December  4,  1844. 

Twelve  months  after  date  we  promise  to  pay  the  Merchants' 
Mutual  Insurance  Company,  or  order,  for  value  received,  twenty- 
seven  hundred  and  eighty-five  dollars  and  five  cents. 

DERAISMES  &  BOIZARD." 

This  note  was  given  in  renewal  of  a  previous  note  for  $3000, 


372  CASES  IN  THE  COURT  OF  APPEALS. 

Dcraisme*  t>.  Tho  Merchants'  Mutual  Ins.  Co. 

which  was  given  for  premiums  in  advance  on  policies  of  in- 
surance, intended  to  be  received  by  the  defendants  from  the 
plaintiffs,  under  the  twelfth  section  of  the  act  incorporating  the 
plaintiffs,  (Stat.  1843,  p.  73,)  and  in  pursuance  of  the  following 
agreement,  which  was  signed  by  the  defendants  and  others : 
"The  subscribers  hereby  agree  to  give  their  notes  at  one  year 
from  date,  to  The  Merchants'  Mutual  Insurance  Company,  of 
which  William  Neilson  is  intended  to  be  the  President,  for  the 
amounts  set  opposite  to  their  names  respectively,  being  for  pre- 
miums on  risks  to  be  taken  by  said  company  on  the  following 
conditions :  First.  The  amount  of  said  risks  shall  be  respec- 
tively at  least  the  sums  affixed  to  our  signatures,  the  rates  of 
premiums  to  be  agreed  upon  hereafter.  Secondly.  That  this 
agreement  shall  be  entered  into  by  persons  satisfactory  to  each 
of  us,  and  to  the  collective  amount  of  two  hundred  thousand 
dollars.  Thirdly.  That  the  rates  charged  by  The  Merchants' 
Mutual  Insurance  Company  shall  be  the  same  as  are  charged 
by  the  insurance  companies  of  this  city.  Fourthly.  That  the 
subscribers  shall  enjoy  the  advantage  of  The  Merchants'  Mu- 
tual Insurance  Company,  as  secured  by  charter,  and  shall  in 
no  event  be  made  liable  for  the  debts  of  the  company,  beyond 
the  amount  of  their  several  subscriptions."  The  defendants 
actually  took  policies  of  insurance  in  the  company,  in  pursu- 
ance of  the  above  agreement,  and  of  the  twelfth  section  of  the 
charter,  to  such  an  amount  only  as  that  the  premiums  thereon 
amounted  to  the  sum  of  $790,  and  no  more.  This  sum,  before 
the  trial  of  the  cause,  had  been  paid  to  and  accepted  by  the 
plaintiffs'  attorney,  together  with  the  costs  up  to  the  time  of 
such  payment;  and  it  was  insisted  that  the  note  was  not  valid 
or  collectable  for  any  further  sum,  being,  as  was  contended,  for 
all  beyond  that  sum,  an  engagement  to  pay  premiums  on  risks 
which  the  company  never  assumed.  The  company  became 
insolvent  in  consequence  of  losses  sustained  by  the  great  fire 
in  1845. 

The  judge  who  tried  the  cause  in  the  superior  court,  charged 
the  jury,  that  as  matter  of  law  upon  the  whole  case,  the  plain- 
tifla  were  entitled  to  recover  the  full  amount  of  the  note,  less 


ROCHESTER,  JUNE,  1848.  373 

Deraismes  ».  The  Merchants'  Mutual  Ins.  Co. 

the  sum  of  $790  paid.  A  verdict  and  judgment  were  had  ac- 
cordingly, and  the  defendants  having  duly  excepted,  bring  error 
into  this  court 

C.  O' Conor,  for  the  plaintiffs  in  error.     The  note  in  ques- 
tion was  given  in  advance  for  premiums  on  risks  to  be  assumed 
by  the  company  for  the  defendants  ;  and  so  far  as  risks  were 
not  assumed  the  plaintiffs  were  not  entitled  to  recover.     The 
notes,  authorized  to  be  taken  for  premiums  in  advance  from 
persons  intending  to  receive  policies  under  the  12th  section  of 
the  act  of  incorporation,  are  not  absolutely  and  unconditionally 
payable,  whether  the  company  earn  premiums  or  not.     That 
section  is  merely  an  enabling  clause  and  not  a  clause  providing 
a  capital  for  the  company.     Its  object  was  to  provide  the  com- 
pany with  accommodation  notes,  which  if  needed,  might  be 
used  to  pay  ordinary  expenses  and  losses  occurring  in  the  regu- 
lar course  of  its  business.     The  other  provisions  of  the  charter 
harmonized  with  this  construction,  (§§  11,  13,  15  16  17,  24,) 
while  the  construction  contended  for  on  the  other  side  would 
lead  to  the  greatest  absurdities  and  incongruities.     The  nature 
and  history  of  mutual  insurance  companies,  and  a  comparative 
view  of  the  characters  they  have  borne  at  different  times,  also 
support  the  construction   which  we  contend  for.     (Strang-  v. 
Harvey,  3  Bing.  304;  id.  315;  2  Term  Rep.  512;  7  id.  339; 
Laws  of  1809,  p.  154 ;  id.  1802,  p.  152  ;  id.  1814,  p.  56  ;  id. 
1816,  p.  Ill;  id.  1834,  p.  530,  §§  4,  7,  8;  id.  1836,  p.  128, 
§§6,8,  11.) 

D.  Lord,  for  the  defendants  in  error.     The  defendants  gave 
the  note  in  question  for  the  purpose  of  aiding  in  the  establish- 
ment and  support  of  a  company  for  mutual  insurance,  without 
any  stock  capital.     The  advantages  from  such   company  to 
every  person  intending  to  take  out  policies,  were  a  consideration 
sufficient  to  uphold  a  note  given  for  the  above  purpose.     The 
uniting  or  concurring  with  others  who  were  to  give  similar 
notes,  and  the  giving  of  such  notes  by  others,  was  a  considera- 
tion sufficient  to  uphold  the  note.     It  was  also  a  sufficient  con- 


374  CASES  IN  THE  COURT  OF  APPEALS. 

Deraiamcs  r.  The  Merchants'  Mutual  Ins.  Co. 

sideration  to  sustain  this  note,  that  the  company  organized  and 
commenced  business  upon  the  basis  of  this  and  other  similar 
notes,  and  issued  policies  to  the  makers.  The  taking  of  policies 
by  dealers  with  the  company,  having  the  12th  section  of  this 
charter  in  its  constitution,  was  a  credit  given  to  the  company 
upon  all  the  assets  in  its  possession,  and  was  also  a  good  con- 
sideration. The  note  was  valid  as  a  statutory  security ;  the 
statute  itself  removed  the  objection  of  the  want  of  considera- 
tion, and  it  sanctioned  a  compensation  for  the  liability. 

The  notes  are  valid  as  a  security  to  dealers  for  their  full 
amount ;  otherwise  they  would  not  be  a  security  to  dealers. 
As  mere  advances  of  premiums,  not  to  be  valid  unless  the  pol- 
icies were  taken  out,  the  notes  were  in  nowise  a  security  for 
dealers.  As  notes  to  be  valid  only  when  negotiated  before  in- 
solvency, they  would  afford  no  security  to  dealers,  but  would 
create  as  large  a  claim  on  the  company  as  that  which  their 
negotiation  satisfied.  They  were  intended  to  induce  insur- 
ances with  the  company  not  only  from  strangers,  but  from  the 
givers  of  the  notes ;  to  induce  the  makers  to  fill  them  up  by 
premiums.  If  the  makers  are  not  held  liable  for  the  full  amount, 
this  object  would  be  defeated. 

GRAY,  J.  This  is  an  action  to  recover  from  the  plaintiff 
in  error  a  note  for  $2785,05,  executed  to  the  Merchants' 
Mutual  Insurance  Company,  in  renewal  of  a  note  for  $8000, 
given  by  them  to  said  company,  pursuant  to  the  provisions  of 
the  twelfth  section  of  the  act  of  incorporation  of  said  com- 
pany, passed  April  10,  1813.  (See  Sess.  Laws  of  1843,  ch. 
95.  p.  73.)  The  second  section  of  the  act  provides  that  after 
having  received  approved  applications  for  insurance  to  the 
amount  of  §500,000,  the  premiums  on  which  shall  have  been 
actually  paid  in  or  secured  to  be  paid,  the  company  may  be  or- 
ganized and  commence  its  operations.  No  objection  having 
been  made  on  that  ground,  vre  are  authorized  to  infer  that  all 
the  requirements  of  the  act,  preliminary  to  the  due  organization 
of  the  company,  were  observed  and  fully  complied  with.  The 
12th  section  of  the  act  provides  that  "  the  company,  for  the 


ROCHESTER,  JUNE,  1848.  375 

Deraismes  v.  The  Merchants'  Mutual  Ins.  Co. 

better  security  of  its  dealers,  may  receive  notes  for  premiums  in 
advance,  of  persons  intending  to  receive  its  policies,  and  may  ne- 
gotiate such  notes  for  the  purpose  of  paying  claims  or  otherwise 
in  the  course  of  its  business,"  and  authorizes  a  compensation  not 
exceeding  five  per  cent,  per  annum  to  be  made  to  the  signers  of 
such  notes  on  such  portion  thereof  as  may  exceed  the  amount  of 
premiums  actually  paid  in  by  the  several  makers  respectively. 

The  note  in  question  was  given  for  premiums  in  advance 
under  the  12th  section.  The  premiums  on  insurances  actually 
taken  amount  to  $790,  and  to  that  extent  the  validity  of  the 
note  is  not  denied.  But  the  concession  that  the  note  is  so  far 
valid,  it  seems  to  me,  virtually  admits  that  it  is  good  for  the 
whole  amount.  It  is  not  like  an  ordinary  commercial  note, 
where  a  partial  failure  of  consideration  may  be  set  up  as  be- 
tween the  original  parties.  I  look  upon  this  note  as  a  statutory 
security,  the  validity  of  which  may  be  rested  entirely  upon  the 
statute  authorizing  it  to  be  taken,  and  does  not  at  all  depend 
upon  any  question  of  consideration.  And  in  this  view  the 
security,  if  good  for  any  amount,  is  valid  and  effectual  for  the 
whole.  If,  however,  a  consideration  should  be  deemed  essen- 
tiaj  to  its  validity,  then  the  agreement  signed  by  the  plaintiff 
with  others,  interested  as  associates  in  this  company,  to  give 
their  notes  respectively,  and  to  share  severally  the  liabilities, 
and  enjoy  the  advantages'^  The  Merchants'  Mutual  Insurance 
Company,  as  secured  by  its  charter,  and  the  fact  also  that  divi- 
dends of  the  profits  on  the  excess  of  the  notes  so  given,  over  and 
above  the  amount  of  premiums  on  actual  insurance,  were  also 
provided  for  by  the  charter,  and  to  be  annually  distributed  to 
the  several  makers  of  notes,  constitute  a  consideration  valid  and 
sufficient  to  uphold  this  note. 

It  was  alleged  on  the  part  of  the  plaintiffs  below,  on  the  argu- 
ment, and  the  fact  was  not  at  all  controverted,  that  the  note  in 
question  to  its  full  amount  with,  tbe  notes  of  other  persons  given 
in  advance  for  premiums,  was,  by  the  commissioners,  included 
with  the  premium  notes  on  actual  applications,  and  used  to 
make  the  amount  of  $500,000  required  by  the  2d  section  of  the 


376  CASES  IN  THE  COURT  OF  APPEALS. 

Deraismea  r.  The  Merchants'  Mutual  Ins.  Co. 


act  as  a  prerequisite  to  the  organization  and  commencement 
of  operations  of  the  company. 

It  may  be  questionable,  perhaps,  whether  under  the  provisions 
of  the  charter  these  notes  were  thus  applicable,  and  whether  the) 
could  be  made  legally  available  as  the  basis  on  which  alone  the 
organization  of  the  company  was  authorized  by  the  legislature 
But  this  question  was  not  raised.  The  objection  of  the  plaintiff 
in  error  does  not  extend  to  the  legality  of  the  company's  organi- 
zation, nor  to  the  collectability  of  that  part  of  the  note  amounting 
to  the  premium  on  insurance  actually  made ;  but  the  objection 
and  the  only  question  submitted  for  our  consideration  is,  whether 
this  note,  as  to  the  balance  beyond  the  actual  insurance,  can  be 
collected.  Of  that  I  have  nodoubt.  Admitting  what  I  deem  is  con- 
ceded by  the  plaintiff  in  error,  that  the  company  was  duly  orga- 
nized, and  that  the  note  was  taken  in  the  exercise  of  its  Jegiti 
mate  powers,  and  is  valid  in  part  and  collectible  to  the  amount 
of  $790,  and  there  remains  not  a  doubt  of  the  validity  and  col- 
Isctability  of  this  note  to  its  entire  amount,  and  the  application 
thereof  by  the  company  to  the  purposes  authorized  by  its  charter. 

It  was  not  the  intention  of  the  legislature,  nor  is  it  necessary 
to  the  validity  of  these  notes  to  tkeir  full  amount,  that  insur- 
ance by  the  company  shall,  at  the  time,  or  subsequently,  be  ac- 
tually made  to  the  persons  making  the  notes,  to  such  an  amount 
as  that  the  premium  thereon  shall  in  amount  be  equal  to  the 
amount  of  the  notes.  That  is  not  at  all  important  or  necessary. 
The  object  of  this  note  and  all  similar  notes  taken  by  the  com- 
pany, and  the  purposes  for  which  they  were  designed  by  the 
legislature,  arc  for  the  better  security  of  the  dealers  with  the 
company;  and  if  losses  have  been  or  shall  at  any  time  be  sus- 
tained by  those  dealers,  these  notes  to  the  entire  amount  thereof 
are  legally  as  well  as  equitably  applicable  to  the  payment  and 
liquidation  of  those  looses.  By  the  great  lire  in  New-York  in 
1815,  this  company  incurred  liabilities  on  account  of  insurances 
to  an  extent  exceeding  altogether  its  means,  and  was  rendered 
utterly  insolvent;  and  justice  requires,  therefore,  that  all  its 
available  means  shall  be  collected  and  faithfully  appropriated 
to  meet  the  losses  of  its  dealers  and  creditors.  It  would  be  a 


ROCHESTER,  JUNE    1848.  377 

Bogert  v .  Morse. 

palpable  perversion  of  the  object  and  design  of  the  legislature, 
and  a  gross  fraud  upon  the  dealers  and  creditors  of  the  com- 
pany, to  hold  that  these  notes  and  securities,  upon  the  basis  of 
which  the  community  has  been  induced  to  deal  with  the  com- 
pany, are  void  and  uncollectable  wholly,  or  available  only  to 
the  extent  of  the  actual  insurance  made  thereon. 

I  am  of  opinion  that  the  judgment  of  the  superior  court  should 

be  affirmed. 

Judgment  affirmed. 


BOGERT  vs.  MORSE. 

377 
It  seems,  that  where  one  party  receives  money  from  another,  and  there  is  no  expla-    ..  ** 

nation  of  the  fact,  the  presumption  is  that  he  receives  it  because  it  is  his  due,  and 
not  by  way  of  loan. 

But  where  a  witness  testified,  that  he  asked  the  defendant  if  he  had  had  any  money 
of  the  plaintiff,  and  the  defendant  replied  that  he  had  had  twenty  dollars  of  him,  and 
the  witness  then  told  the  defendant  that  the  plaintiff  had  requested  the  witness  to 
speak  to  him  about  it,  to  which  the  defendant  made  no  reply,  but  turned  away; 
HELD,  that  a  jury  might  infer  from  this  evidence  that  the  money  was  received  by 
way  of  a  loan,  and  the  jury  having  so  found,  that  their  verdict  in  a  justice's  court 
was  conclusive. 

ON  error  from  the  supreme  court.  Morse  sued  Bogert  in  a 
justice's  court  for  money  lent.  The  cause  was  tried  by  a  jury, 
and  on  the  trial  a  witness  called  for  the  plaintiff  testified  that 
at  the  request  of  the  plaintiff  he  went  to  see  the  defendant  about 
some  money  lent;  that  he  asked  the  defendant  if  he  had  had  some 
money  of  the  plaintiff;  the  defendant  replied  that  he  had  had 
twenty  dollars  of  him  ;  the  witness  then  said  to  him  that  the 
plaintiff  had  requested  the  witness  to  speak  to  him  about  it ; 
that  the  defendant  made  no  reply  to  this  observation,  but  turned 
away.  There  was  no  other  evidence  in  the  case,  and  the  de- 
fendant requested  the  justice  to  nonsuit  the  plaintiff.  The  jus- 
tice refused  to  do  so,  and  submitted  the  evidence  to  the  jury, 
who  found  a  verdict  in  favor  of  the  plaintiff  for  the  $20,  on  which 
the  justice  entered  judgment.  The  defendant  removed  the 

VOL.  I.  48 


378  CASES  IN  THE  COURT  OF  APPEALS. 

Bogert  r.  Mowe. 

judgment  by  certiorari  into  the  common  pleas  of  Yates  county 
where  the  judgment  was  reversed.  The  plaintiff  then  brought 
error  into  the  supreme  court,  where  the  judgment  of  the  com- 
mon pleas  was  reversed  and  that  of  the  justice  affirmed.  The 
following  is  the  opinion  of  the  supreme  court. 

By  the  Court,  BRONSON,  Ch.  J.  What  the  plaintiff  said  to 
the  witness  was  not  communicated  to  the  defendant,  and  must 
therefore  be  laid  out  of  view.  The  proof  then  stands  thus  : 
The  witness  went  to  the  defendant's  store  and  asked  him  if  he 
had  had  any  money  of  the  plaintiff.  The  defendant  said  he 
had  had  twenty  dollars  of  him.  Upon  this  proof,  without  any 
thing  more,  the  fair  and  reasonable  inference  is  that  the  defendant 
received  the  money  because  it  was  due  to  him,  and  not  by  way 
of  a  loan.  When  one  man  delivers  a  sum  of  money  to  another, 
if  there  be  nothing  else  to  explain  the  transaction,  the  legal  pre- 
sumption always  is  that  the  money  belonged  to  the  one  who 
received  it,  and  not  that  he  thereby  became  a  debtor  to  the  other. 
(  Welch  v.  Seaborn,  1  Stark.  R.  474.)  But  the  plaintiff  thinks 
his  case  is  helped  by  what  followed.  After  the  defendant  said 
he  had  had  twenty  dollars,  the  witness  said  to  him — the  plain- 
tiff told  me  to  speak  to  you  about  it..  The  defendant  made  no 
reply,  but  turned  around  and  went  into  the  store.  I  feel  some 
difficulty  in  saying  that  this  made  out  aprimafacicc3.se  for 
the  plaintiff.  If  the  money  was  received  because  it  was  due  to 
the  defendant,  he  would  understand  from  what  the  witness  said 
that  the  plaintiff  wished  to  obtain  evidence  of  the  payment ; 
and  as  that  admission  had  already  been  made,  there  was  no 
occasion  for  a  reply.  Nothing  was  said  about  a  lo'an  ;  and  the 
facts  proved  are  about  as  consistent  with  the  supposition  that 
the  defendant  received  the  money  as  a  creditor,  as  that  he  re- 
ceived it  as  a  debtor.  The  plaintiff  holds  the  affirmative  ;  and 
must  show  that  it  was  a  loan.  It  is  not  enough  for  him  to 
make  out  a  balanced  case,  and  then  leave  it  to  a  jury  to  guess 
at  the  truth. 

Although  my  brethren  agree  in  this  rule,  they  thin*  that  the 
scales  were  turned  in  favor  of  the  plaintiff;  that  the  act  of  the 


ROCHESTER,  JUNE,  1848.  379 

Loh man  v.  The  People. 

defendant  in  turning  away  without  a  reply,  wlien  he  was  told 
that  the  witness  had  been  directed  to  speak  to  him  about  the 
money,  furnished  some  evidence  that  he  received  the  money  as 
a  loan,  and  so  made  out  a  proper  case  for  the  consideration  of 
the  jury.  On  reflection,  I  shall  not  dissent  from  that  view  of 
the  case.  If  there  was  enough  to  carry  the  cause  to  the  jury, 
their  decision  was  final.  The  judgment  of  the  common  pleas 
must  therefore  be  reversed,  and  that  of  the  justice  affirmed. 

The  cause  was  argued  in  this  court  by  E.  Van  Buren,  for 
plaintiff  in  error  ;  and  B.  W.  Franklin,  for  defendant  in  error. 

After  advisement  the  court  were  of  opinion  that  the  evidence 
was  proper  for  the  consideration  of  the  jury,  and  the  jury  hav- 
ing found  that  the  money  was  received  by  the  defendant  as  a 
loan,  that  the  common  pleas  erred  in  reversing  the  judgment 
of  the  justice.  The  judgment  of  the  supreme  court  was  there- 
fore affirmed. 


ANN  LOHMAN,  alias  Madame  RESTELL,  vs.  THE  PEOPLE.  379  0 

s49  AD     3' 
25  HI 

Mere  surplusage  in  an  indictment  will  not  vitiate,  and  therefore  where  an  indictmen      32  51! 

alleges  facts  which  constitute  a  misdemeanor,   it   will  he  good   for  that  offence.  d42 

43  4  '' 

although  it  state  other  facts  which  go  to  constitute  a  felony  provided  all   the  facts     ^  ,«' 

alleged  fall  short  of  the  charge  of  felony,  in  consequence  of  some  other  fact  essen-   m74          *2, 
tial  to  that  charge,  e.  g.  the  intent  of  the  party  accused  not  being  averred.  80  44' 

By  statute  (Laics  of  1845,  ch.  260,  §  2)  it  is  a  misdemeanor  to  administer  drugs  &c.  "7 
to  a  pregnant  female  with  intent  to  produce  a  miscarriage  ;  and  by  statute  {Laws, 
of  184G,  ch.  22,  §  1)  it  is  manslaughter  to  use  the  same  means  with  intent  to  Jettrmt 
lheckild,\n  case  the  death  of  such  child  be  thereby  produced.  The  indictment 
charged  all  the  facts  necessary  to  constitute  the  crime  of  manslaughter,  except  the 
intent  with  which  the  acts  were  done,  and  in  its  conclusion  it  characterized  the 
crime  as  manslaughter;  but  the  only  intent  charged  was  an  intent  to  produce  a 
miscarriage;  HELD  that  the  indictment  was  fatally  defective  for  the  felony,  but 
good  for  the  misdemeanor,  and  that  the  accused  was  properly  convicted  of  the 
latter  offence. 

A  conviction  for  a  misdemeanor  under  such  an  indictment  would,  it  seems,  be  a  bar 
to  a  subsequent  indictment  for  the  felony.     The  record  would  be  conclusive  evi- 


380     CASES  IN  THE  COURT  OF  APPEALS. 

Lohman  r.  The  People. 


dencc  that  the  acts  were  done  with  the  intent  alleged  in  the  indictment,  and  therefore 
the  people  could  not  allege  a  different  intent,  so  as  to  constitute  a  different  offence. 

A  juror  being  challenged  to  the  favor  testified  before  the  triers,  that  he  had  formed 
no  opinion  and  had  no  impressions  as  to  the  guilt  of  the  prisoner,  but  that  it  had 
been  and  was  still  his  impression  that  the  general  character  of  the  prisoner  waa 
bad.  The  question  was  then  put  to  the  juror  whether  he  would  disregard  what 
he  had  heard  and  read,  and  render  his  verdict  according  to  evidence.  Objected  to, 
and  exception  taken.  Held  that  the  question,  although  inartificially  put,  sub- 
stantially called  for  the  consciousness  of  the  juror  as  to  his  ability  to  try  the  cause 
impartially,  and  therefore  that  it  was  properly  allowed. 

A  witness  is  privileged  from  answering  a  question  when  the  answer  would  tend  to 
disgrace  him,  unless  the  evidence  would  bear  directly  upon  the  issue;  and  there- 
fore, where  the  answer  could  have  no  effect  upon  the  case,  except  as  it  might  im- 
pair the  credibility  of  the  witness,  held  that  he  was  privileged. 

Where  the  cross-examination  of  the  principal  witness  for  the  people  was  conducted 
in  a  manner  tending  to  impair  her  credibility,  and  to  show  that  the  prosecution 
was  the  result  of  a  conspiracy  in  which  she  was  concerned ;  held  that  it  was  com- 
petent to  sustain  the  witness,  by  showing  that  another  person,  to  whom  the  facts 
had  become  professionally  known,  wrote  to  the  public  authorities,  and  was  the 
cause  of  the  prosecution  being  instituted. 

THE  defendant  was  convicted  in  the  court  of  general  sessions 
of  the  city  and  county  of  New- York,  under  the  second  section 
of  the  act  to  prevent  the  procurement  of  abortion,  passed  in 
1845,  and  sentenced  to  imprisonment  in  the  county  jail.  The 
judgment  of  the  court  of  sessions  was  affirmed  on  a  writ  of 
error,  by  the  supreme  court,  (see  2  Barb.  Sup.  Court  Rep,  216,) 
which  last  decision  the  defendant  removed  by  writ  of  error 
into  this  court. 

The  first  section  of  chapter  22,  ($ess.  Laws  of  1846,  p.  19,) 
enacts  in  substance,  that  every  person  who  shall  administer  to 
any  woman  pregnant  with  a  quick  child,  any  medicine,  drug, 
&/c.  or  shall  use  any  other  means  with  intent  thereby  to  destroy 
suck  child,  (unless  the  same  arc  necessary  to  preserve  the  lift- 
of  the  mother,)  shall,  in  case  the  death  of  the  mother  or  child 
be  thereby  produced,  be  deemed  guilty  of  manslaughter  in  the 
.second  degree.  The  second  section  repeals  the  first  section  of 
the  act  to  punish  the  procurement  of  abortion,  passed  in  1845  ; 
and  the  first  section  above  quoted  is  a  transcript  of  the  section 
repealed,  with  the  addition  of  the  words,  "  in  case  the  death  of 
such  child  or  mother  be  thereby  produced." 


ROCHESTER,  JUNE,  1848.  33  j 

Lohman  c.  The  People. 

The  second  section  of  the  act  of  1845  provides,  that  if  tne 
means  mentioned  in  the  first  section  are  used  "  with  intent  to 
procure  the  miscarriage  of  such  woman"  the  offender  shall 
-be  punished  by  imprisonment  in  the  county  jail,  &c. 

All  the  counts  in  the  indictment  averred  an  intent  upon  the 
part  of  the  defendant  "  to  procure  the  miscarriage  of  Maria 
Bodine,"  varying  only  as  to  the  means  used,  and  alleging  that 
"  by  means  thereof  the  death  of  the  child  was  procured."  The 
several  counts  then  conclude  as  follows:  "And  so  the  jurors 
aforesaid  do  say,  that  the  defendant  the  said  quick  child  in  the 
manner  and  by  the  means  aforesaid,  feloniously  and  wilfully 
did  kill  and  slay,  against  the  form  of  the  statute." 

At  the  trial,  one  Cortelyou  was  called  as  a  juror,  and  chal- 
lenged to  the  favor  by  the  defendant,  which  was  denied  by  the 
people ;  and  upon  the  issue  thus  joined  the  juror  was  sworn  as 
a  witness  for  the  defendant,  and  testified  that  he  had  formed  no 
opinion  as  to  the  guilt  of  the  prisoner  ;  that  what  he  had  read 
made  no  impression  upon  his  mind  ;  that  he  did  not  think  he 
had  ever  read  a  full  statement  of  the  case  ;  that  he  did  not 
think  he  had  any  impressions  as  to  the  guilt  or  innocence  of  thr 
prisoner ;  but  it  had  been  and  was  his  impression  that  th< 
general  character  of  the  defendant  was  bad.  On  his  cross 
examination  he  was  asked  by  the  counsel  for  the  people  the  foi 
lowing  question  :  "  If  you  were  sworn  as  a  juror  in  this  cause 
would  you  disregard  what  you  have  heard  or  read  out  of  court 
and  render  your  verdict  upon  the  evidence?"  The  question  wat 
objected  to  as  irrelevant,  as  calling  for  the  opinion  of  the  wit- 
ness, and  as  substituting  his  judgment  for  that  of  the  triers. 
The  court  overruled  the  objection,  and  the  defendant  ex 
cepted. 

Upon  the  trial  Maria  Bodine,  the  person  named  in  the  indict- 
ment, was  called  as  a  witness  by  the  people,  and  testified  that 
she  went  to  live  with  one  Cook  in  the  month  of  July,  1845,  that 
she  had  intercourse  with  him  about  a  month  after,  which  was 
continued  to  May,  1846,  at  which  time  she  discovered  that  she 
was  pregnant.  Upon  the  cross-examination,  the  counsel  for 
the  defendant  proposed  the  following  questions  to  the  witness 


382  CASES  IN  THE  COURT  OF  APPEALS. 

Lohman  v.  The  People. 

which  she  declined  to  answer  upon  the  ground  that  they  would 
tend  to  disgrace  her.  "  Had  you  any  sexual  intercourse  with 
any  other  person  than  Cook  prior  to  April,  1846  ?  Had  you 
during  the  fall  of  1845,  or  winter  of  1846,  the  venereal  disease? 
Had  you  any  sexual  intercourse  with  any  other  person  than 
Cook  between  July,  1845,  and  April,  1846  ?"  The  court  re- 
fused to  compel  the  witness  to  answer,  and  to  this  decision  the 
defendant  excepted. 

After  a  protracted  cross-examination  of  Maria  Bodine,  one  object 
of  which  was  to  impair  the  credit  of  the  witness,  the  counsel  for 
the  people  called  Dr.  Smith  as  a  witness,  who  testified  to  an  ex- 
amination of  Maria  Bodine,  made  by  him  in  May,  1847,  and  as 
the  result  of  that  examination,  his  opinion  as  a  physician,  1st,  that 
the  female  must  have  been  delivered  of  a  child  badly  managed,  or 
2d,  that  an  abortion  must  have  been  procured  upon  her,  or  3d, 
that  there  had  been  some  mechanical  injury,  or  injury  by  some 
instrument,  or  violence.  He  was  then  asked  by  the  prosecution 
the  following  question  :  "  In  consequence  of  your  examination, 
and  the  opinion  you  formed,  and  in  consequence  of  a  commu- 
nication confidentially  made  to  you  as  a  physician  by  Maria 
Bodine  as  your  patient  cotemporaneously  with  your  examina- 
tion, what  steps  did  you  take  ?"  On  inquiry  by  defendant'* 
counsel,  the  counsel  for  the  people  avowed  the  object  of  the 
question  to  be  in  substance  to  sustain  the  testimony  of  Maria 
Bodine,  by  showing  by  the  witness  that  he  wrote  to  the  mayor 
of  New- York,  and  was  the  cause  of  the  prosecution  being  insti- 
tuted. To  the  question,  and  the  offer  of  the  counsel  for  the 
people,  the  defendant  objected  ;  the  objection  was  overruled  and 
an  exception  was  taken. 

E.  Sandford,  for  plaintiff  in  error. 

J.  McKeon,  (district  attorney,)  for  the  people. 

By  the  Court,  GARDINER,  J.  The  indictment  is  defective 
under  the  first  section  of  the  act  of  1846,  in  omitting  to  charge 
*n  intent  to  destroy  the  child  by  the  means  employed  by  the 


ROCHESTER,  JUNE,  1848.  333 

Lohrnan  v.  The  People. 

defendant.     It  contains  all  and  more  than  is  necessary  to  consti 
tute  a  misdemeanor  within  the  2d  section  of  the  act  of  1845. 

Mere  surplusage  will  not  vitiate  the  indictment,  and  of  course 
is  no  ground  for  reversing  the  judgment.  (People  v.  Jackson, 
3  Hill,  94,  and  cases  cited.) 

It  is  contended,  however,  that  the  prisoner,  notwithstanding 
this  conviction,  may  be  indicted  for  manslaughter,  adding  to 
the  charges  in  this  indictment  the  intent  to  destroy  the  child. 
If  this  were  admitted  it  would  furnish  no  ground  for  reversal. 
The  offences  created  by  the  first  section  of  the  act  of  1846,  and 
the  second  section  of  the  act  of  1845,  are  separate  and  distinct, 
as  the  counsel  for  the  defendant  strenuously  insists.  The  pris- 
oner has  been  found  guilty  of  a  misdemeanor ;  and  I  do  not 
perceive  how  this  court,  in  face  of  the  verdict  and  the  record, 
can  assume  that  the  defendant  has  been  guilty  of  a  felony. 

Upon  the  same  principle,  if  the  defendant  had  been  convicted 
of  an  assault  and  battery,  we  might  have  been  asked  to  reverse 
the  judgment,  because  she  might  have  been  guilty  of  a  battery 
with  intent  to  kill.  To  constitute  a  felony,  nothing  would  be 
necessary  but  to  add  the  intent  to  the  other  allegations  of  the 
indictment. 

But  in  the  second  place,  I  incline  to  the  opinion  that  the  de- 
fendant could  plead  this  conviction  in  bar  to  a  subsequent 
indictment  for  the  felony,  under  the  first  section  of  the  act  of 
1846.  The  right  does  not  result  from  the  doctrine  that  a  party 
cannot  be  put  a  second  time  in  jeopardy  for  the  same  offence, 
because  as  we  have  seen  the  offences  under  the  1st  and  2d  sec- 
tions, are  distinct,  but  from  a  principle  of  wider  application, 
namely,  that  the  accused  may  always  avail  himself  of  the  plea 
of  a  former  conviction,  if  the  record  shows  affirmatively  that  the 
defendant  could  not  have  been  guilty  of  the  crime  charged  in 
the  indictment. 

The  difference  in  the  offences  as  laid  in  this  indictment,  and 
the  felony  under  the  1st  section  of  the  act  of  1845,  t  is  said 
truly,  consists  solely  in  the  intention  of  the  criminal — the 
means  of  their  commission  and  the  consequences  in  either  case 
being  precisely  the  same.  Now  to  constitute  a  misdemeanor 


384     CASES  IN  THE  COURT  OF  APPEALS. 

Lohnian  r.  The  People. 

under  the  statute,  the  indictment  must  allege,  and  upon  con- 
viction the  jury  must  find,  that  the  means  charged  were  used 
with  the  intent  to  procure  a  miscarriage.  The  people  there- 
fore would  be  concluded  by  the  record  from  alleging,  in  a  sub- 
sequent indictment,  that  the  prisoner  employed  the  same  means, 
upon  the  same  person  and  occasion,  with  a  different  design. 

A  conviction  for  manslaughter  is  a  bar  to  a  subsequent  in 
dictment  for  murder.  The  distinction  in  the  offences  consists 
in  the  intent  with  which  the  homicide  is  committed.  The  record 
of  conviction  would  show,  in  effect,  that  the  killing  was  without 
malice,  and  would  be  conclusive  upon  the  people  and  the  accused. 
(Chit.  Cr.  L.  456  ;  Coke's  R.  part  4,  146.)  The  case  of  Rex 
v.  Cross,  (1  Lid.  Raym.7\\,}  cited  by  the  defendant,  is  an  au- 
thority to  show  that  where  the  same  facts  which  constitute  a 
misdemeanor  at  common  law,  are  made  felony  by  statute,  the 
indictment  must  be  for  felony.  The  case  in  5  Mass.  R.  106, 
and  9  Cowen,  578,  decide  that  where  a  conspiracy  is  consum- 
mated, you  cannot  separate  the  agreement  to  conspire  from 
the  overt  act  by  which  it  is  accomplished.  These  are  all  in- 
stances of  merger,  and  have  no  application  to  a  case  like  the 
present,  where  the  offences  created  by  the  1st  and  2d  sections 
of  our  statutes  are  conceded  to  be  separate  and  distinct. 

As  to  the  question  put  to  the  juror  Cortelyou.  The  issue 
to  be  tried  was  whether  the  juror  stood  indifferent  between  the 
parties.  This  of  course  depended  upon  his  state  of  mind.  To 
ascertain  this  was  the  object  of  the  examination  of  both  parties. 
Upon  an  issue  of  this  kind,  from  the  nature  of  the  fact  to  be 
established,  the  opinion  of  the  juror  derived  from  his  own  con- 
sciousness, was  relevant,  competent  and  primary  evidence. 
The  interrogatory  put  was  in  form  exceedingly  inartificial, 
but  its  effect  (and  to  this  only  the  objection  applies)  was  obvi- 
ously to  elicit  an  opinion  as  to  the  strength  of  the  impression  to 
\vhich  he  had  previously  testified,  and  whether  he  was  conscious 
of  the  ability  to  render  a  verdict  according  to  the  evidence  not- 
withstanding. If  the  juror  answered  in  the  affirmative,  it 
would  have  been  a  declaration  that  he  possessed  such  ability. 
This  would  be  but  an  opinion,  but  one  founded  on  his  own 


ROCHESTER,  JUNE,  1848.  335 

Lohman  v.  The  People. 

consciousness,  and  so  far  entitled  to  the  consideration  of  the 
triers,  although  by  no  means  conclusive  upon  them.  If  he  had 
responded  in  the  negative,  the  answer  would  (if  believed)  have 
been  decisive  against  his  competency.  For  although  a  man 
may  think  himself  impartial  when  he  is  not,  he  cannot  be  a 
competent  juror  if  conscious  of  an  inability  to  render  a  verdict 
without  being  influenced  by  previous  impressions.  The  ques- 
tion then  was  equivalent  to  asking  the  juror  whether  he  felt 
or  was  conscious  that  he  could  render  an  impartial  verdict  not- 
withstanding all  that  he  had  heard  or  read.  This  in  effect 
was  the  question  put  and  sustained  by  the  supreme  court,  in 
The  People  v.  Bodine,  (3  Denio,  122.) 

As  to  the  questions  proposed  to  Maria  Bodine.  It  is  hard- 
ly necessary  to  say  that  the  answers  sought  to  these  questions 
would  have  disgraced  the  witness.  She  was  therefore  privi- 
leged from  answering  unless  her  answers  were  material  to  the 
issue.  Her  pregnancy  was,  it  is  true,  one  of  the  facts  to  be 
established  by  the  prosecution,  but  whether  induced  by  Cook  or 
any  other  person  was  entirely  immaterial.  If  her  response  had 
been  in  the  affirmative  to  each  of  these  interrogatories,  it  would 
not  have  been  inconsistent  with,  or  tended  to  disprove  the  fact 
of  her  pregnancy,  or  the  agency  of  the  prisoner  in  procuring 
the  miscarriage,  any  farther  than  those  answers  affected  her 
general  character.  The  privilege  of  witnesses  has  been  carried 
much  farther  in  some  of  the  cases,  but  all  the  authorities  agree, 
that  where  as  in  this  case,  the  object  of  the  question  is  to  impair 
the  credibility  of  the  witness,  she  could  not  be  compelled  to 
answer.  (People  v.  Mather,  4  Wend.  250,  and  cases  cited; 
Cowen  <$f  Hill's  Notes,  No.  521,  and  cases  cited ;  I  Burr's 
Trial,  244 ;  1  Greenl.  §  454.) 

As  to  the  exception  to  the  question  proposed  to  Dr.  Smith.  It 
is  now  said  that  the  question  assumes  two  facts,  viz.  1st.  that 
Maria  Bodine  had  made  a  confidential  communication  to  the 
witness,  and  that  he  took  some  steps  in  consequence  thereof; 
and  2d.  that  the  communication,  if  made  as  assumed,  was  priv- 
ileged. If  this  were  true,  the  answer  is,  that  these  matters 
were  not  suggested  upon  the  trial,  nor  was  the  attention  of  the 

VOL.  I.  49 


386  CASES  IN  THE  COURT  OF  APPEALS. 

Barren  v.  The  People. 

court  directed  to  them.  The  objection  was  of  the  most  general 
character.  The  opinion  formed  by  the  witness  upon  the  exam- 
ination testified  to  by  him,  aided  by  communications  from  the 
patient  as  to  her  symptoms  and  the  state  of  her  health,  was  not 
only  competent  evidence,  but  strongly  corroborative  of  her  testi- 
mony. (1  Greenl.  §  102.)  It  was  a  part  of  the  res  gestcB.  If 
the  physician  was  thereby  induced  (even  if  it  was  not  the  sole 
motive)  to  resort  to  the  public  authorities  for  the  purpose  of  fur- 
ther investigation,  I  can  perceive  no  objection  to  the  fact  being 
proved.  The  cross-examination  of  Maria  Bodine,  as  is  mani- 
fest from  inspection,  was  designed  to  discredit  her  with  the 
jury.  She  had  stated  in  answer  to  the  defendant's  inquiries, 
the  fact  of  her  making  a  written  statement  at  Walden,  which 
she  delivered  to  officer  Boyer  at  that  place,  and  minutely  the 
circumstances  of  her  visit  to  New- York  after  the  crime  was 
committed,  and  of  her  attendance  before  the  grand  jury.  Now 
the  defendant  is  not  at  liberty  to  say  that  this  examination 
was  irrelevant — and  it  could  only  be  material  with  a  view  to 
impeach  the  veracity,  or  the  motives  of  the  witness,  by  showing 
her  agency  in  procuring  the  indictment.  In  either  view,  the 
testimony  of  Smith  was  important,  as  it  went  to  corroborate  her 
statement  and  vindicate  her  motives. 

We  think  there  was  no  error  in  the  judgment  of  the  supreme 
court. 

Judgment  affirmed. 


BARRON  vs.  THE  PEOPLE. 

The  deposition  of  a  witness  taken  in  a  criminal  case  pursuant  to  the  statute  relating 
to  certain  offences  committed  in  the  city  of  New- York.  {Slot,  of  1844,  p.  47G,  §  11,) 
may  be  read  in  evidence  on  the  trial  of  the  indictment,  on  proof  that  the  witness 
u  a  non-resident  of  the  city  at  the  time  of  the  trial,  and  was  so  when  the  deposi- 
tion was  taken. 

Where,  however,  the  only  proof  preliminary  to  reading  the  deposition  was  the  evi- 
dence of  a  person  employed  by  the  district  attorney  to  serve  subpoenas,  who  twti- 


ROCHESTER,  JUNE,  1848.  337 

Barren  r.  The  People. 

fied  that  a  subpoena  was  issued  to  him  for  the  witness  whose  deposition  was  offered 
to  be  read,  that  he  called  at  two  of  the  hotels  in  the  city,  where,  as  he  was  informed 
by  the  district  attorney,  the  witness  stopped  when  he  was  in  the  city,  that  he  in- 
quired of  the  bar-keepers  at  each  of  those  places,  and  was  informed  that  the  wit- 
ness was  not  at  either  of  those  places,  and  did  not  live  in  New- York  to  their 
knowledge,  that  he  could  not  find  the  witness  in  the  city,  and  did  not  know  where 
he  resided  ;  held  insufficient  to  authorize  the  deposition  to  be  read. 

ERROR  to  the  supreme  court.  Barren  was  indicted  in  the 
New- York  general  sessions  for  grand  larceny,  committed  in  that 
city.  The  indictment  was  removed  into  the  New- York  oyer 
and  terminer,  and  tried  there.  On  the  trial  the  district  attorney 
ofiered  to  read  in  evidence  against  the  defendant  the  deposition 
of  James  Whaley  Bennett,  purporting  to  have  been  taken  de 
bene  esse  on  the  27th  of  April,  1847,  before  the  recorder  of  the 
city,  pursuant  to  Stat.  1844,  p.  476,  §  11.  The  deposition  was 
filed  on  the  30th  of  April — three  days  after  it  was  taken.  To 
authorize  the  reading  the  district  attorney  called  Thomas  W 
Brennan,  who  testified  as  follows:  "I  am  one  of  the  officers 
employed  in  the  office  of  the  district  attorney  of  the  city  of 
New- York  to  serve  subpo3nas,  and  had  a  subpoena  in  this  cause 
for  James  Whaley  Bennett.  I  had  a  subposna  for  Bennett  to 
look  for  him,  to  look  after  him,  to  serve  it  on  Bennett.  I  went 
to  Rathbun's  hotel  and  Lovejoy's  hotel  in  this  city,  the  places 
where  I  was  informed  by  district  attorney  that  Bennett  stopped 
when  he  was  in  the  city.  I  went  to  Lovejoy's  and  Rathbun's 
several  times,  at  each  time  the  cause  was  on  the  calendar  since 

—  last.  I  inquired  of  the  bar-keepers  at  each  of  those  places 
for  Bennett,  and  was  informed  that  he  was  not  at  either  of  those 
places,  and  did  not  live  in  New- York  to  their  knowledge.  I 
could  not  tind  Mr.  Bennett  in  this  city."  On  cross-examination 
the  witness  said,  he  did  not  know  where  Bennett  resided. 

The  defendant's  counsel  objected  to  the  reading  of  the  depo- 
sition on  several  grounds ;  and  among  others,  that  it  did  not 
appear  that  Bennett  was  a  non-resident  of  the  state,  or  even  of 
the  city  of  New- York  ;  and  that  the  prosecution  had  not  used 
due  diligence  to  obtain  the  personal  appearance  of  the  witness — 
that  they  ought  to  have  sent  a  subposna  for  him  to  Chautauque 
county.  It  was  stated  in  the  deposition  that  the  witness  re 


388  CASES  IN  THE  COURT  OF  APPEALS. 

Barren  v.  The  People. 

sided  in  that  county.  The  court  overruled  the  objection,  and 
the  defendant  excepted.  The  deposition  was  read,  and  the  de- 
fendant was  convicted,  and  sentenced  to  five  years  imprison- 
ment in  the  state  prison.  On  error  brought  the  supreme  court 
affirmed  the  judgment  of  the  oyer  and  terminer.  The  defen- 
dant then  brought  error  to  this  court. 

E.  Sandford,  for  the  plaintiff  in  error 

John  McKeon,  (district  attorney,)  for  the  people. 

BRONSON,  J.  When  certain  offences  are  committed  in  the 
city  and  county  of  New-York,  against  persons  being  in,  but  not 
being  residents  of  the  city,  the  testimony  of  all  witnesses  in  the 
matter,  being  in,  but  not  residing  in  the  city,  may,  on  the  appli 
cation  of  the  district  attorney,  be  taken  de  bene  csse,  before  a 
judge,  out  of  court.  The  witness  must  be  examined  in  pres- 
ence of  the  accused  ;  the  examination  must  be  reduced  to  wri- 
ting, and  filed  in  the  office  of  the  clerk  of  the  court  of  sessions  ; 
and  may  be  used  before  the  grand  jury,  and  all  courts  and  tri- 
bunals having  jurisdiction  of  the  subject  matter,  in  the  same 
manner  and  with  the  like  effect  as  the  witness  could  be  were 
he  personally  present.  (Stat.  1844,  p.  476,  §  11.)  There  is 
another  statute  touching  this  matter,  but  it  does  not  affect  the 
present  question.  (Slat.  1846,  p.  408,  §  9.)  The  testimony  is 
to  be  taken  "de  bene  esse"  or  conditionally ;  but  upon  what 
condition,  or  under  what  circumstances  the  deposition  may  be 
used,  the  legislature  has  not  specified.  Although  the  supreme 
court  felt  embarrassed  in  The  People  v.  Haddeji,  (3  Dcnio,  220,) 
by  the  want  of  such  a  specification,  they  were  clearly  of  opinion 
that  the  deposition  could  not  be  read  in  evidence  under  all  pos- 
sible circumstances,  or  as  a  matter  of  course ;  but  that  the  dis- 
trict attorney  must  give  some  account  of  the  witness,  or  the 
reason  why  he  was  not  produced,  before  the  deposition  could 
be  received  :  and  a  new  trial  was  ordered  in  that  case,  because 
the  district  attorney  had  been  allowed  to  read  the  deposition, 
without  sufficiently  accounting  for  the  absence  of  the  witness. 


ROCHESTER,  JUNE,  1848.  339 

Barren  r.  The  People. 

There  can  be  no  doubt  of  the  correctness  of  the  decision.  But 
I  think  the  court  might  have  gone  a  step  further,  and  solved 
the  question  when,  or  under  what  circumstances,  the  deposition 
may  be  read  in  evidence.  As  the  testimony  is  to  be  taken  de 
bene  esse,  or  conditionally,  without  any  specification  of  the  cir- 
cumstances under  which  it  may  be  used,  the  legislature  mus 
have  referred  to  the  established  practice  of  taking  testimony  de 
bene  esse,  or  conditionally,  in  civil  cases.  Such  deposition  can 
only  be  given  in  evidence  on  showing  that  the  witness  is  dead, 
insane,  or  unable  to  attend  the  trial  in  consequence  of  sickness 
or  settled  infirmity  ;  or  that  he  is  absent  from  the  state.  ( The 
People  v.  Restell,  3  Hill,  295,  and  cases  cited;  2  R.  S.  391, 
art.  1.)  Unless  we  understand  the  legislature  as  referring  to 
the  practice  in  civil  cases,  the  words  "  de  bene  esse,"  as  they 
are  used  in  the  statute,  will  have  no  meaning.  But  with  that 
reference,  all  is  plain  enough.  The  deposition  cannot  be  read 
on  the  trial,  without  first  showing  that  the  attendance  of  the 
witness  could  not  be  procured,  either  in  consequence  of  his  in- 
ability to  come,  or  his  absence  from  the  state. 

It  has  not  been  contended,  on  the  part  of  the  people,  that  the 
deposition  may  be  read  under  all  possible  circumstances.  It  is 
admitted  that  some  account  must  be  given  of  the  witness.  But 
it  is  said  to  be  enough  to  show  that  the  witness  is  a  non-resident 
of  the  city,  or  cannot,  upon  diligent  search,  be  found  in  it,  at 
the  time  of  the  trial.  That  admission  is  enough  to  dispose  of 
this  case ;  for  there  was  no  proof  whatever  that  the  witness 
was  a  non-resident ;  and  nothing  like  sufficient  proof  that  he 
could  not  be  found  in  the  city.  The  deposition  had  not  been 
read  at  the  time  this  question  arose ;  and  Mr.  Brennan  knew 
nothing  about,  the  residence  of  the  witness.  He  was  only  called 
for  the  purpose  of  showing  that  the  witness  could  not  be  found 
in  the  city  at  the  time  of  the  trial ;  and  there  was  a  total  fail- 
ure to  make  out  any  thing  like  due  diligence  in  the  search  and 
inquiry.  It  amounted  to  no  more  than  this  :  Brennan,  without 
knowing  any  thing  himself  about  the  witness  or  his  residence, 
went  to  two  hotels,  where  he  was  informed  by  the  district  at 
torney  that  Bennett  stopped  when  he  was  in  the  city ;  and  on 


390     CASES  IN  THE  COURT  OF  APPEALS. 

Barren  ».  The  People. 

inquiry,  he  was  informed  by  the  two  bar-keepers  that  Bennett 
"was  not  at  either  of  those  places,  and  did  not  live  in  New- 
York  to  their  knowledge:"  which  means,  I  suppose,  that  they 
knew  nothing  about  the  matter,  either  one  way  or  the  other. 
The  district  attorney  was  not  called  to  state  what  he  knew 
about  Bennett,  or  why  he  sent  Brennan  to  the  two  hotels. 
Some  stress  was  laid  on  the  concluding  remark  of  Brennan, 
that  he  "could  not  find  Mr.  Bennett  in  the  city."  But  he  had 
previously  given  the  particulars  of  what  he  had  done  in  the 
premises  ;  and  it  was  far  enough  from  a  diligent  search  or  in- 
quiry after  the  witness. 

This  is  enough  to  dispose  of  the  case  as  it  now  comes  before 
us.  But  as  the  question  which  has  already  been  made,  will 
undoubtedly  be  made  again  upon  the  new  trial  which  must  be 
ordered,  it  is  proper  that  we  should  determine  what  must  be 
shown  concerning  the  witness  before  the  deposition  can  be 
read.  That  has  already  been  intimated.  It  is  not  enough  to 
prove  that  the  witness  is  a  non-resident  of  the  city,  or  (hat  upon 
diligent  search  and  inquiry  he  cannot  be  found  in  it :  nor  will 
both  of  those  facts  combined  make  out  a  proper  case.  Absence 
from  the  city  is  not  mentioned  at  all  in  the  statute ;  and  non- 
residence  is  only  spoken  of  in  reference  to  the  class  of  persons 
who  are  injured  by  the  offence,  and  the  witnesses  who  may  be 
examined  out  of  court.  When  we  come  to  the  question,  upon 
what  condition,  or  under  what  circumstances  the  deposition 
may  be  read,  the  .statute  is  entirely  silent,  except  in  the  use  of 
the  words  dc  bcnc  esse.  If  we  do  not  reject  those  words  as 
utterly  senseless,  they  evidently  point  to  the  rule  in  civil  cases; 
and  the  witness  must  be  produced  on  the  trial,  unless  his  at- 
tendance is  prevented  by  insanity,  sickness,  settled  infirmity 
or  absence  from  the  state.  The  legislature  could  not  have  in- 
tended to  make  a  rule  more  burdensome  to  the  accused  in 
criminal  cases,  than  is  the  rule  in  relation  to  a  party  in  a  civil 
suit.  They  did  not  intend  that  the  deposition  should  be  read 
wnen  the  witness  resides  at  Brooklyn,  in  sight  of  the  New- York 
city  hall ;  and  yet  such  is  the  result  of  the  doctrine  which  has 
been  urged  on  the  part  of  the  prosecution. 


ROCHESTER,  JUNE,  1848.  39} 

Barren  ».  The  People 

If  this  question  were  more  doubtful  than  it  is,  it  should  be 
borne  in  mind,  that  upon  any  construction,  this  is  a  statute  in 
derogation  of  the  common  law  rules  of  evidence ;  and  that  it 
violates  a  principle  which  was  thought  of  sufficient  importance 
to  be  adopted  as  a  part  of  the  sixth  amendment  of  the  consti- 
tution of  the  United  States,  and  also  forms  a  part  of  our  bill  of 
rights,  in  these  words :  "  In  all  criminal  prosecutions  the 
accused  has  a  right  to  be  confronted  with  the  witnesses 
against  him."  (1  R.  S.  94,  §  14.)  This  means  something 
more  than  that  the  accused  shall  have  the  right  to  stand  face 
to  face  with  his  accuser  out  of  court ;  it  means  that  they  shall 
be  confronted  on  the  trial,  so  that  the  judge  and  jury  may  have 
the  opportunity  of  observing  the  appearance  and  manner  of  the 
witness,  as  well  as  hearing  what  he  has  to  say — the  former 
sometimes  proving  a  complete  antidote  to  the  latter,  as  is  well 
known  to  every  nisi  prius  lawyer.  We  cannot  very  well  over- 
stimate  the  importance  of  having  the  witness  examined  and 
jross-examined  in  presence  of  the  court  and  jury.  Although 
the  constitution  of  the  United  States  does  not  apply  to  state 
prosecutions,  and  our  bill  of  rights  is  but  a  statute,  which,  like 
other  statutes,  may  be  repealed,  we  ought  to  adopt  the  most 
strict  construction  for  the  purpose  of  confining  any  supposed 
repeal — especially  one  by  mere  implication — to  the  narrowest 
possible  limits.  Justice  to  the  legislature  requires  that  we 
should  so  construe  the  statute  as  not  to  carry  the  inroad  which, 
to  some  extent,  it  makes  upon  a  great  principle,  any  further 
than  is  absolutely  necessary. 

I  am  of  opinion  that  the  rule  which  governs  the  reading  of 
depositions  taken  conditionally  in  civil  cases,  should  be  applied 
to  depositions  taken  under  the  New-York  criminal  statute. 
Upon  this  construction  the  statute  will  still  have  effect.  It  will 
apply  wherever  the  witness,  at  the  time  of  the  trial,  resides  oui 
of  the  state,  or  is  dead  ;  arid  where,  though  alive  and  residing 
in  the  state,  he  has  become  incapable  of  attending  the  trial  ia 
consequence  of  sickness  or  insanity. 

But  a  majority  of  the  judges  are  of  opinion  that  though  the 
witness  may  be  a  resident  of  the  state  and  able  to  attend  tK« 


392  CASES  IN  THE  COURT  OF  APPEALS. 


Ruckman  r.  Pitcher. 


trial,  the  deposition  may  be  read  on  proof  that  he  is  a  non-resi- 
dent of  the  city  at  the  time  of  the  trial,  and  was  so  when  the 
deposition  was  taken.  We  are  all  of  opinion  that  there  was 
no  sufficient  proof  of  such  non-residence  in  this  case ;  and  on 
that  ground  the  judgments  of  the  supreme  court  and  the  oyer 
and  terminer  must  be  reversed,  and  a  new  trial  be  awarded. 

Ordered  accordingly. 


Af*<  •> 

RUCKMAN  vs.  PITCHER. 

392 

15  "525    ^k6  'os'nS  party  in  an  illegal  bet  or  wager  may  recover  from  the  stakeholder  the 

15  "526       8Um  deposited  by  him,  although  the  stakeholder  by  his  direction,  given  immedi- 

15  '527        ately  after  the  wager  is  determined,  has  paid  the  money  over  to  the  winner. 

"  I*    An  action  to  recover  money  deposited  on  an  illegal  wager  may  be  maintained  with 

}2  1459        out  demand. 

A  wager  upon  the  result  of  a  horse  race  in  Queens  county  is  unlawful,  notwith- 
standing the  statutes  authorizing  and  regulating  the  racing  of  horses  in  that  county. 
A  party  who  stakes  a  surn  of  money  on  an  illegal  wager  may  recover  so  much 
thereof  as  belongs  to  himself  without  joining  in  the  action  other  persons  who  con- 
tributed specific  portions  of  the  fund. 

ERROR  from  the  supreme  court,  where  the  action  was  debt, 
brought  by  Ruckman  against  Pitcher,  for  money  had  and  re- 
ceived contrary  to  the  provisions  of  the  statute  against  betting 
and  gaming.  The  defendant  pleaded  nil  dcbct,  and  the  cause 
was  tried  at  the  New- York  circuit  held  by  KENT,  circuit  judge, 
in  October,  1811.  The  case  was  this:  The  plaintiff  made  a 
bet  of  $3000  with  one  M  in  turn  on  the  event  of  a  trotting  match 
to  take  place  at  the  Centreville  course  on  Long  Island,  and  the 
money  on  both  sides  was  deposited  with  the  defendant  as  stake- 
holder. Minturn  won  the  wager  and  immediately  after  re- 
quested the  defendant  to  pay  over  to  him  the  money.  The 
defendant  then  asked  the  plaintiff,  who  was  present,  if  he  had 
any  objection  to  the  money  being  paid  over  and  whether  he 
was  satisfied.  The  plaintiff  replied  that  he  was  satisfied,  and 


ROCHESTER,  JUNE,  1848.  393 


Ruckman  v.  Pitcher. 


directed  the  defendant  to  pay  over  the  money,  which  he  accor- 
dingly did.  The  evidence  tended  to  show  that  other  persons 
besides  the  plaintiff  were  interested  in  the  money  staked  by 
him,  and  that  in  fact  only  $500  belonged  to  him. 

The  counsel  for  the  defendant  requested  the  circuit  judge  to 
charge  the  jury  that  the  defendant  was  entitled  to  a  verdict  on 
the  following  grounds,  viz.  1.  That  other  persons  being  inter- 
ested with  the  plaintiff  in  the  money  bet,  the  action  was  not 
properly  brought  in  the  name  of  the  plaintiff  alone ;  2.  That 
the  race  was  not  unlawful,  being  on  a  regulated  course  in 
dueens  county,  and  authorized  by  the  act  of  1834 ;  3.  That 
the  money  when  lost  was  paid  over  by  the  consent  and  direc- 
tion of  the  defendant;  4.  That  the  plaintiff  could  only  recover,  if 
at  all,  the  amount  he  was  proved  to  be  interested  in  the  bet,  to 
wit,  $500  ;  5.  That  the  action  could  not  be  maintained  without 
proof  of  a  demand  of  the  money.  The  circuit  judge  charged 
the  jury,  that  if  the  money  was  paid  over  by  the  consent  and 
direction  of  the  plaintiff,  he  could  not  recover.  On  the  other 
points  the  charge  was  favorable  to  the  plaintiff.  The  jury 
found  a  verdict  for  the  defendant.  The  plaintiff  made  a  bill 
of  exceptions  and  moved  the  supreme  court  for  a  new  trial, 
which  was  denied,  and  judgment  rendered  for  the  defendant. 

/  T.  Brady,  for  plaintiff  in  error.  The  circuit  judge  erred 
in  charging  the  jury  that  the  plaintiff  could  not  recover  if  the 
money  staked  had,  after  the  race,  been  paid  to  Minturn  as  the 
winner  thereof,  with  the  consent  and  by  the  order  of  the  defen- 
dant. The  revised  statutes  (1  R.  S.  662,  §§  8,  9, 16)  make  the 
stakeholder  liable,  whether  he  has  or  has  not  paid  over  the 
money  to  the  winner.  His  liability  arises  from  merely  having 
the  stakes  in  his  possession.  In  paying  over  the  stakes  to  the 
winner  he  knew  that  he  was  violating  the  law,  and  that  his 
liability  to  refund  to  Ruckman  continued  notwithstanding  such 
payment.  The  consent  to  such  payment  could  not  make  it 
legal,  nor  relieve  the  stakeholder  from  liability.  There  was  no 
legal  nor  moral  consideration  for  the  transfer  of  the  plaintiff's  mo 
ney.  On  the  contrary,  it  was  transferred  in  violation  of  the  law. 

VOL.  I. 


394  CASES  IN  THE  COURT  OF  APPEALS. 

Ruckman  r.  Pitcher. 

Any  other  rule  would  defeat  the  intention  of  the  legislature,  and 
destroy  the  utility  of  the  statute  against  betting  and  gaining. 
The  consent  after  the  race,  should  not  create  any  right,  or 
change  any  liability,  more  than  the  consent  involved  in  the 
wager  itself,  viz.  that  the  stakeholder  might  deliver  the  stakes 
to  the  winner.  (Rev.  Notes,  3  R.  S.  2d  ed.  p.  555,  §  9.)  There 
is  no  room  for  the  argument  that  this  was  a  voluntary  gift  of 
the  money  by  Ruckman  to  Minturn  like  an  ordinary  donation. 
It  was  paid  by  a  stakeholder,  as  the  stakes  of  an  unlawful  wa- 
ger, to  the  winner  as  such,  with  the  consent  of  the  loser,  and  in 
illegal  satisfaction  of  the  bet.  To  recognize  the  defendant's 
position  on  this  point  would  be  palpably  circumventing  the 
policy  of  the  law. 

If  this  court  consider  the  other  questions  in  the  case,  the 
plaintiff  insists  that  this  suit  was  properly  brought  in  the  name 
of  Ruckman  alone,  he  being  the  person  who  delivered  the  mo- 
ney to  the  defendant,  and  had  the  legal  interest  to  demand  it 
back.  (1  Chit.  PI.  2,  9,  Springf.  ed.  of  1839.) 

Whether  the  race  in  question  was  or  was  not  lawful,  the  wager 
upon  its  issue  was  void.  (Gouverneurv.  Gibbons,  1  Den.  170.) 

The  ninth  section  of  the  revised  statutes  gives  the  right  of 
action,  instanter,  on  the  deposite  being  made  with  the  stake- 
holder— not  after  demand  made.  To  require  a  demand  of  the 
deposite  from  the  stakeholder  after  he  has  paid  it  over  would 
be  absurd.  No  demand  before  suit  brought  was  necessary. 
(Downes  v.  Phenix  Bank  of  Charleston,  6  Hill,  297.) 

N.  B.  Blunt,  for  the  defendant  in  error. 

JONES,  J.  It  is  claimed  to  have  been  shown,  on  the  trial  of 
this  cause,  that  the  race  was  run  upon  a  regulated  course  in 
Queens  county,  in  full  accordance  with  the  special  statutes  ex- 
empting certain  races  in  that  county  from  the  prohibitions  and 
penalties  of  the  general  statute  on  the  subject  of  the  racing  of 
animals  ;  ($tat.  1834,  ch.  73  ;  id.  1821,  ch.  193  ;)  and  hence  it 
has  been  insisted,  that  as  the  race  itself  was  lawful  under  those 
statutes,  the  same  statutes  permitted  and  sanctioned  the  bet  or 


ROCHESTER,  JUNE.  1848.  395 


Ruckman  t>.  Pitcher. 


wager  upon  the  result  of  the  race.  I  understand  the  supreme 
court  to  have  held  that  the  wager  was  illegal,  as  coming  within 
the  general  statute  against  betting  and  gaming,  although  the 
race  itself  was  licenced  by  the  special  acts  referred  to,  and  I 
fully  concur  in  that  opinion.  The  argument  in  favor  of  the 
defendant  in  error  is,  that  as  the  general  statute  relating  to  the 
racing  of  animals,  prohibits  such  racing  for  any  wager,  bet  or 
stakes,  and  the  exempting  acts  allow  the  racing  of  horses  on 
particular  courses  freed  from  the  provisions  and  penalties  of  the 
general  prohibitory  act,  it  is  therefore  not  illegal  to  wager  money 
upon  the  result  of  the  permitted  race.  It  is  evident,  I  think, 
that  the  only  effect  of  the  special  statutes  is  to  exempt  the  race 
itself  from  the  penalties  of  the  general  law  against  racing,  leav- 
ing the  general  statute  which  prohibits  betting  and  gaming  to 
have  its  full  operation  upon  the  wager  on  the  event  of  the  race. 
The  statute  against  the  racing  of  animals  declares  all  running, 
trotting,  &c.  for  any  bet  or  stakes,  except  such  as  are  allowed 
by  special  laws,  common  and  public  nuisances  and  misdemea- 
nors, and  that  all  parties  concerned  therein  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  punished  by  fine  or  im- 
prisonment. (1  R.  S.  672,  §  1 ;  1  R.  L.  222,  §§  1,  2,  3,  4,  6.) 
The  act  against  betting  and  gaming,  (1  R.  S.  662 ;  1  R.  L. 
223,)  declares  unlawful  "all  wagers,  bets  or  stakes,  made  to 
depend  upon  any  race,  or  upon  any  gaming  by  lot  or  chance, 
or  upon  any  lot  or  chance,  or  unknown  or  contingent  event 
whatever,  and  that  all  contracts  for  or  on  account  of  any  money 
or  property  or  thing  in  action,  so  wagered,  bet  or  staked,  shall 
be  void."  These  statutes  relate  to  different  subjects,  contain 
distinct  and  separate  provisions,  affording  different  remedies, 
and  imposing  different  penalties,  as  will  be  seen  on  a  reference 
to  the  sections  under  each  article.  While,  therefore,  the  special 
acts  which  have  been  referred  to,  may  exonerate  the  parties 
concerned  in  the  race  in  question  from  the  provisions  and  pen- 
alties of  the  act  against  the  racing  of  animals.  I  see  no  reason 
to  doubt  that  the  wager  upon  the  result  of  the  race  comes  fully 
within  the  provisions  of  the  act  declaring  all  wagers  unlawful, 
and  all  contracts  relating  to  them  void. 


396  CASES  IN  THE  COURT  OF  APPEALS. 

Ruckman  r.  Pitcher. 

The  payment  of  the  money  over  to  the  winner  by  the  consent 
and  direction  of  the  plaintiff",  constitutes  the  principal  ground 
of  defence.  It  is  claimed  for  the  defendant  that  he  is  dis- 
charged thereby  from  all  liability  to  return  or  pay  back  to  the 
plaintiff  the  money  thus  paid  by  his  order  to  the  winner.  The 
plaintiff  is  bound,  it  is  said,  by  his  own  act,  and  is  precluded 
and  estopped  by  his  consent  and  direction  to  the  stakeholder  to 
pay  the  stakes  to  the  winner,  and  the  payment  over  of  the 
same  by  the  stakeholder,  in  obedience  to  such  direction,  from 
now  claiming  the  money  as  being  still  his  own,  and  coercing  the 
payment  of  it  by  the  stakeholder  to  himself.  But  how  can  that 
rule  be  claimed  to  apply?  The  question  is  not  upon  the  ab- 
stract rights  and  obligations  of  parties  left  free  to  contract,  con- 
sent and  act  for  themselves,  and  bound  by  their  admissions  and 
acts.  The  liability  of  the  stakeholder  to  the  loser,  and  the 
loser's  right  of  action  against  him,  rest  upon  the  statute.  The 
legislature  has  prescribed  the  rules  which  are  to  govern  the 
case,  and  our  inquiry  must  be  what  the  rules  are  which  the 
statute  intends  to  apply. 

In  the  first  place,  the  fact  simply  of  the  payment  over  of  the 
stakes  to  the  winner,  can  certainly  be  of  no  avail  to  the  stake- 
holder, for  the  statute  on  that  point  is  perfectly  clear  and  ex- 
plicit. It  expressly  enables  and  authorizes  any  person  who 
shall  pay  or  deliver  or  deposit  any  money  or  property  upon  the 
event  of  any  wager  or  bet  thereby  prohibited,  to  sue  for  and 
recover  the  same  of  the  winner  or  person  to  whom  the  same 
shall  be  paid  or  delivered,  and  of  the  stakeholder  or  other  per- 
son in  whose  hands  the  same  shall  be  deposited,  whether  the 
same  shall  have  been  paid  over  by  such  stakeholder  or  not, 
and  whether  the  wager  was  lost  or  not.  In  the  present  case 
the  stakes  were  paid  over  by  the  stakeholder  to  the  winner, 
and  evidence  was  given  to  show  that  such  payment  was  with 
the  consent  and  by  the  direction  of  the  loser,  and  the  question 
must  be  upon  the  effect  of  such  consent  and  direction  as  the 
proof  shows  to  have  been  given,  upon  the  claim  of  the  loser  and 
the  obligation  and  liability  of  the  stakeholder.  In  other  words, 
whether  the  consent  and  direction  of  the  loser  to  the  stakeholder 


ROCHESTER,  JUNE,  1848.  397 

Ruckman  v.  Pitcher. 

to  pay  over  the  bet  or  stakes  to  the  winner,  and  the  actual  pay- 
ment over  of  the  same  under  that  direction  varies  the  case. 
and  deprives  the  loser  of  the  right  the  statute  gives  him  to  re- 
claim and  recover  back  the  same  of  the  stakeholder  who  has 
thus  paid  it  over. 

It  is  contended,  on  the  part  of  the  defendant,  that  the  statute 
applies  to  voluntary  payments  only  of  the  stakes  by  the  stake- 
holder to  the  winner,  without  the  direction  or  assent  of  the  loser, 
and  not  to  payments  by  the  order  or  with  the  consent  and  per- 
mission of  the  depositor.  And  it  is  urged  that  if  the  money  or 
stakes,  notwithstanding  the  result  of  the  race,  was  still  the 
money  of  the  depositor,  and  at  his  disposal,  his  order  to  the 
stakeholder  to  pay  it  to  the  winner  was  a  valid  disposition  of  it 
obligatory  upon  the  stakeholder,  and  which  the  loser  could  not 
be  permitted  to  revoke  or  disregard.  To  this  the  counsel  for 
the  plaintiff  replies,  that  the  statute  gives  to  the  loser  the  un- 
qualified right  to  sue  for  and  recover  his  stake  or  deposit  of  the 
stakeholder,  whether  such  stake  or  deposit  has  been  paid  by 
the  stakeholder  to  the  winner  or  not ;  that  the  right  to  recover 
is  absolute,  and  previous  payment  to  the  winner  is  no  defence. 
The  clear  and  obvious  import  of  the  language  of  the  statute  is 
that  the  payment  of  the  stakes  or  deposit  by  the  stakeholder 
to  the  winner,  does  not  discharge  or  exonerate  him  from  his 
liability  to  pay  the  same  to  the  loser,  who  has  a  perfect  right, 
notwithstanding  such  payment  to  the  winner,  to  recover  the 
same  from  the  stakeholder.  There  is  no  provision  made  or 
intimation  given  by  the  statute,  that  the  consent  of  the  loser  to 
such  payment,  or  his  direction  to  the  stakeholder  to  pay  the 
same  to  the  winner,  shall  give  effect  to  such  payment  as  a  dis- 
charge to  the  stakeholder,  or  a  bar  to  the  loser's  action  against 
him.  And  in  my  judgment,  any  construction  of  the  statute 
which  should  limit  and  confine  its  application  to  voluntary  pay- 
ments of  tbe  stakes  by  the  stakeholder  to  the  winner,  and  allow 
such  payment  over,  when  by  the  order  or  with  the  consent  of 
the  loser,  to  be  valid  and  effectual  as  a  discharge  to  the  stake- 
holder, and  a  defence  for  him  to  the  action  of  the  loser,  would 
contravene  the  sense  and  policy  of  the  statute,  and  materially 


398  CASES  IN  THE  COURT  OF  APPEALS. 


Ruckman  t.  Pitcher. 


impair  the  value  of  the  provisions  on  which  its  successful  opera- 
tion must  depend. 

I  agree  that  in  ordinary  transactions  the  order  or  direction 
of  a  person  having  money  in  the  hands  of  another,  to  pay  it  to 
a  third  person,  will  authorize  and  justify  him  in  whose  hands 
the  money  is,  to  pay  the  same  on  such  order,  and  that  such 
payment  will  be  a  perfect  defence  for  the  party  who  has  thus 
paid  it  over,  against  any  claim  or  action  therefor  hy  the  owner. 
But  this  was  not  the  ordinary  case  of  the  direction  of  a  person 
having  money  in  the  hands  of  another  to  pay  it  to  a  stranger 
or  third  person.  It  was  the  consent  of  a  loser  of  a  bet  to  a 
stakeholder  to  pay  that  bet  to  the  winner.  It  was  given  by 
the  loser  on  the  race-course  upon  the  authoritative  announce- 
ment of  the  result  of  the  race,  and  on  the  application  of  the 
stakeholder  to  him  for  permission  to  pay  over  the  stakes  to  the 
winner,  as  being  won  by  him.  The  very  time  and  place  when 
and  where  the  application  was  made,  and  the  consent  given, 
characterize  it  as  a  mere  assent  and  acquiescence  of  the  loser  in 
the  loss  of  the  bet,  and  the  right  of  the  winner  to  it,  and  the 
consequent  authorization  of  the  loser  to  the  stakeholder  to  pay 
it  over  accordingly.  Look  at  the  transaction  as  narrated  by 
the  witness.  The  whole  alleged  direction  was  simply  this:  On 
the  application  of  Minturn  the  winner,  to  Pitcher  the  stake- 
holder, upon  the  decision  of  the  judge  that  the  race  was  won 
by  Americus,  for  the  stakes  as  won  by  him,  Pitcher,  the  stake- 
holder, called  Ruckman,  the  loser,  who  was  on  the  ground, 
and  asked  him  "if  he  had  any  objection  to  handing  over  the 
money,  and  if  he  was  perfectly  satisfied."  He  replied  that  uhe 
was,"  and  "to  hand  over  the  money."  What  was  this  reply 
to  the  stakeholder's  question  more  than  a  mere  assent  of  Ruck- 
man,  the  loser,  to  the  decision  of  the  judge  as  to  the  result  of 
the  race,  and  that  his  bet  upon  it  was  lost  by  him,  and  that  the 
stakes  were  to  be  paid  to  the  winner?  The  crnsent  and  direc- 
tion given  were  to  pay  the  money  to  Minturn,  as  money  won 
by  him,  and  to  which  he  was  entitled  as  the  winner.  It  was 
in  no  sense  of  the  terms  a  direction  by  the  plaintiff  in  error  to 
the  defendant  to  pay  money  in  his  hands  belonging  to  him, 


ROCHESTER,  JUNE,  1848.  399 

Ruckman  v.  Pitcher. 

the  plaintiff,  which  he  had  the  right  and  the  power  to  dispose 
of  as  he  saw  fit,  and  which  was  subject  to  his  order  in  favor 
of  Minturn,  or  any  other  person,  at  his  own  free  will  and  plea- 
sure. It  was  distinctly  and  emphatically  an  acknowledgment 
by  him  that  the  money  belonged  not  to  himself,  but  to  Minturn. 
and  was  in  the  defendant's  hands  as  the  money  of  Minturn, 
and  to  be  paid  to  him.  It  was  simply  a  consent,  or  at  most, 
an  order  by  the  loser  on  the  stakeholder  to  pay  a  bet  lost  by 
him  to  the  winner.  He  had  before,  by  the  deposit  of  the  money 
in  the  hands  of  the  stakeholder  as  his  stake  upon  the  event  of 
the  race,  virtually  authorized  and  directed  him,  the  defendant, 
to  pay  over  the  same  to  the  winner,  in  case  the  bet  should,  by 
the  result  of  the  race,  be  lost  by  him.  The  direction  given  by 
him  in  his  answer  to  the  question  put  to  him  by  the  stakeholder 
after  the  race  was  decided  against  him,  to  hand  over  the  money 
to  the  winner,  was  simply  the  recognition  and  repetition  of  the 
authority  before  given  by  him  when  he  made  the  deposit  "  to 
pay  over  the  same  in  case  of  loss."  But  that  consent  and  au- 
thority thus  given  to  the  stakeholder  at  the  time  of  the  deposit 
of  the  stake  in  his  hands,  to  pay  the  same  to  the  winner,  the 
statute  intended  to  cancel  and  annul.  It  was  effectually  an- 
nulled by  authorizing  the  loser,  in  disregard  of  it,  to  sue  for  and 
recover  back  his  deposit  after  the  loss  of  the  bet,  from  a  stake- 
holder who  had  paid  it  over  to  the  winner,  notwithstanding 
such  payment  of  it  over  by  him.  I  can  discover  no  evidence 
in  the  bill  of  exceptions  before  us,  of  any  assent  or  order  of  the 
plaintiff  to  or  for  the  payment  over  of  the  money,  which  does 
not  refer  to  his  express  or  implied  instructions  to  the  stakeholder 
at  the  time  of  the  deposit,  or  was  not  manifestly  in  compliance 
with  the  contract  of  wager,  and  for  the  fulfilment  of  engage- 
ments it  imported.  And  if  I  am  right  in  my  views  of  the  stat- 
ute, neither  any  express  directions  given  at  the  time  of  the  de- 
posit, nor  the  implied  authority  incident  to  the  deposit  of  the 
money  with  the  stakeholder,  as  the  stake  upon  the  race,  nor 
the  repetition  or  renewal  of  that  authority  after  the  race  was 
run  and  the  bet  decided,  nor  an  assent,  order  or  direction  given 
at  the  time  when  the  loss  of  the  bet  was  announced,  to  pay 


400     CASES  IN  THE  COURT  OF  APPEALS. 


Ruckman  t>.  Pitcher. 


over  the  stake  to  the  winner,  can  be  available  as  a  defence  to 
the  action  of  the  plaintiff  for  the  recovery  of  the  deposit 

The  evident  intention  of  the  legislature  was  to  discourage 
and  repress  gaming  in  all  its  forms,  including  bets  and  every 
species  of  uager  contracts  of  hazard,  as  a  great  public  mis- 
chief, calling  for  effective  measures  of  prevention  and  remedy. 
Under  our  system  of  jurisprudence,  as  it  existed  previous  to  the 
revised  statutes,  wagers  not  against  morals  or  sound  policy, 
and  of  no  evil  or  pernicious  tendency,  and  not  prohibited  by 
statute,  were  held  not  to  be  illegal ;  but  all  wagers  and  bets 
which  are  contrary  to  morality  or  public  policy,  or  which  tend 
to  endanger  the  public  peace,  or  affect  the  character  or  feelings 
of  the  citizen,  or  are  otherwise  of  evil  tendency,  as  well  as  those 
which  were  prohibited  by  statute,  were  held  to  be  illegal  and 
void  ;  and  no  action  at  law  could  be  maintained  by  the  winner 
against  the  loser  to  recover  the  money  bet  or  wagered,  however 
fairly  as  respected  the  chance  or  hazard,  and  the  issue  or  event 
of  it,  the  same  might  be  lost  and  won.  If,  however,  the  money 
or  bet,  not  recoverable  by  law.  was  voluntarily  paid  by  the  loser 
to  the  winner,  110  action  could  be  sustained  by  the  loser  to  re- 
cover it  back  ;  for  the  wager  being  illegal  and  the  contract  void, 
and  the  winner  and  loser  both  implicated  in  the  illegality,  the 
law  would  lend  its  aid  to  neither  against  the  other  for  consum- 
mating or  giving  effect  to  any  alleged  right  or  claim  growing 
out  of  the  same,  or  in  immediate  connection  therewith,  but 
would  leave  the  party  in  possession  of  the  fund  or  money,  to 
retain  and  hold  it  against  the  other;  not  from  favor  to  the  pos- 
sessor, or  from  respect  to  his  as  the  superior  title  thereto,  but 
from  disfavor  to  the  illegal  transaction,  and  in  support  of  the 
statute  or  common  law  prohibition  of  it.  This  denial  to  the 
winner  of  the  aid  of  legal  process  against  the  loser,  for  the  com- 
pulsory payment  of  the  bet  to  such  winner,  when  won  by  him, 
was  calculated,  and  doubtless  tended  to  discourage  wagers  and 
bets  understood  to  be  illegal.  But  it  was  counteracted  by  causes 
which  the  laws  could  not  reach  or  control.  The  loser,  under 
the  pressure  of  influences  too  powerful  for  him  in  the  excite- 
ment of  the  ace  or  game  to  withstand,  would  most  generally, 


ROCHESTER,  JUNE,  1848.  49 \ 


Ruckman  v.  Pitcher. 


on  the  decision  of  the  bet,  pay  the  money  lost  to  the  winner. 
But  instances  would  occur  of  losers  who  would  avail  them- 
selves of  the  defence  and  protection  which  the  law,  in  refusing 
its  aid  to  the  winner,  furnished  them  against  the  payment  of 
the  bet.  It  was  of  course  desirable  and  important  to  betters  to 
guard  against  the  exercise  of  this  power  of  the  loser  thus  to  re- 
pudiate and  render  abortive  the  right  and  claim  of  the  winner 
to  the  money  won  of  him ;  and  the  readiest  and  most  reliable 
measure  of  protection  against  it,  was  the  intervention  of  a 
stakeholder,  with  whom  the  stakes  should  be  deposited  and 
placed  for  custody  and  for  delivery  over  to  the  winner  on  the 
result  of  the  race  or  game.  The  stakeholder  would  have  no 
personal  interest  in  the  stakes  to  swerve  him  from  his  engage- 
ment and  duty  to  pay  the  same  over  to  the  winner ;  and  the 
money,  when  thus  paid  over  to  the  winner,  would  be  secured  to 
him  beyond  the  power  of  the  loser  to  reclaim  it  or  recover  it 
back.  But  under  this  arrangement  it  was  a  point  still  unset- 
tled, whether  the  loser  could  not,  in  the  interval,  after  the  loss 
of  the  bet,  and  before  the  payment  of  the  money  to  the  winner, 
reclaim  his  stake  and  sustain  an  action  against  the  stakeholder 
for  the  money  so  deposited  with  him.  It  was  a  question  which 
underwent  much  discussion,  and  on  which  opinions  were  di- 
vided. In  England  the  rule  was  finally  settled  that  when 
money  was  thus  deposited  with  a  stakeholder  on  an  unlawful 
race  or  game,  and  had  not  been  paid  over  by  him,  the  loser 
might,  after  the  event  on  which  the  bet  was  made  to  depend 
had  happened,  and  was  known,  recover  back  the  stake  or 
money  so  deposited  with  and  yet  remaining  in  the  hands  of 
the  stakeholder ;  but  that  when  such  stake  or  money  had  been, 
after  the  loss  of  it,  paid  over  to  the  winner  with  the  loser's  con- 
sent, the  loser  could  not  afterwards  maintain  an  action  against 
the  stakeholder  to  recover  back  such  deposit. 

The  decision  on  the  point  was  at  first  the  same  way  with 
us.  The  question  came  before  the  supreme  court  of  this  state 
in  the  case  case  of  Vischer  v.  Yates,  (11  John.  Rep.  23.)  The 
action  was  by  the  loser  against  the  stakeholder,  to  recover  back 
his  deposit  on  a  wager  or  bet  upon  the  election  for  governor  of 

YOL.  I.  51 


402  CASES  IN  THE  COURT  OF  APPEALS. 

Ruckman  v.  Pitcher. 

the  state,  which  had  resulted  adversely  to  the  plaintiff,  and  his 
bet  was  lost ;  but  the  stakes  had  not  been  paid  over  by  the 
stakeholder  to  the  winner,  and  Chancellor  Kent,  who  was  then 
the  chief  justice  of  that  court,  was  of  opinion  that  the  wager 
was  illegal  as  being  against  public  policy,  and  he  held,  in  accord- 
ance with  the  English  rule,  to  which  he  adverted  in  terms  of 
approbation,  that  the  deposit,  being  upon  an  illegal  wager,  and 
remaining  still  in  the  hands  of  the  stakeholder  not  paid  over  to 
the  winner,  might,  though  the  bet  was  decided  against  the 
plaintiff,  be  recovered  back  by  him  of  the  stakeholder ;  and  the 
other  members  of  the  court  concurring  with  him  in  opinion, 
judgment  was  rendered  for  the  plaintiff.  There  were  several 
actions  then  pending  in  the  same  court,  involving  the  same 
questions,  and  judgments  were  given  for  the  plaintiffs  in  them 
all.  But  on  a  review  of  that  decision  by  the  court  for  the  cor- 
-ection  of  errors,  in  one  of  those  cases  (the  case  of  Yates  v. 
Foot,)  the  judgment  was  reversed  ;  and  that  court  held  that 
money  deposited  with  a  stakeholder  as  stakes,  upon  a  wager 
void  by  the  common  law,  could  not  be  recovered  back  from  the 
stakeholder  by  the  depositor  after  the  event  had  happened  on 
which  the  wager  depended,  although  it  remained  still  in  his 
hands  not  paid  over,  and  he  had  notice  from  the  loser  not  to 
pay  it  over  to  the  winner.  Senator  Sandford,  who  delivered 
the  opinion  on  that  occasion,  states  the  rule  to  be,  that  in  cases 
of  illegal  wagers  and  contracts  of  hazard,  void  by  the  common 
law,  and  which  either  party  might  rescind,  the  party  who  elect- 
ed to  rescind  must  make  his  election,  and  take  his  action  upon 
it  before  the  contingent  event  happens,  for  that  the  happening 
of  the  event  is  the  crisis  in  the  contract  which  terminates  all 
option  and  election  of  the  party  to  revoke  or  rescind  it ;  that 
before  the  contingency  happens,  either  party  may  recede,  but 
that  after  the  result  is  known,  neither  party  can  retract ;  and 
applying  the  principle  to  the  case  then  before  him,  he  held  that 
as  the  hazard  had  ceased  and  the  result  of  the  election  was 
known,  no  action  could  be  allowed  or  maintained  to  recover 
back  the  money  or  stake  in  the  hands  of  the  stakeholder.  On 
these  grounds  that  court  decided  that  the  loser  could  not  recover 


ROCHESTER,  JUNE,  1848.  493 


Ruckman  v.  Pitcher. 


back  his  deposit.  The  statutes  against  gaming  and  horse  racing 
were  then  subsisting  and  in  force,  but  the  wager  then  in  ques- 
tion did  not  come  within  the  provisions  of  either  of  them.  And 
it  was  admitted  by  Senator  Sandford  that  the  rule  deduced  by 
him  from  the  principles  of  the  common  law,  did  not  apply  to 
cases  of  gaming  and  horse  racing.  These  two  species  of  contracts 
of  hazard,  he  observed,  had  been  made  the  subject  of  special 
legislation ;  that  they  were  the  only  classes  of  hazardous  con- 
tracts in  which  the  loser  was  allowed  to  reclaim  and  recover 
back  the  money  he  had  wagered  after  the  event  was  known 
and  the  wager  lost ;  and  that  the  object  of  the  legislature  was 
to  suppress  them,  evidently  on  the  grounds  of  public  policy. 
This  decision  was  in  1814,  and  as  the  law  of  this  state  was 
thereby  declared  to  be,  the  better  who  deposited  money  with  a 
stakeholder  on  an  unlawful  wager,  not  within  the  prohibitions 
of  the  statutes  against  gaming  or  horse  racing,  could  not,  after 
the  bet  was  lost,  recover  b^ck  his  deposit ;  and  whether  the 
money  had  been  paid  over  to  the  winner  by  the  stakeholder,  or 
remained  in  his  hands,  was  of  no  consequence  ;  the  loser  could 
in  neither  case,  after  the  loss  of  the  wager,  maintain  an  action 
against  the  stakeholder  for  it.  The  bet  therefore,  though  ille- 
gal, if  in  deposit  with  a  stakeholder  true  to  his  trust,  was  under 
no  effectual  legal  restraint  or  interdiction,  unless  it  was  within 
the  scope  of  the  statutes  against  gaming  or  horse  racing. 
These  statutes  professed  and  were  intended  to  suppress  the  mis- 
chiefs to  which  they  referred,  but  they  differed  greatly  in  the 
extent  of  the  provisions  they  contained,  and  the  efficiency  of  the 
remedies  they  applied,  for  the  purposes  intended.  The  statute 
against  horse  racing  expressly  prohibited  all  horse  racing  for  wa- 
gers or  stakes  within  the  state  ;  and  the  penalties  affixed  to  the 
offence  were  so  severe  and  stringent  as  to  ensure  to  a  moral  cer- 
tainty the  suppression  of  the  mischief.  But  the  statute  against 
gaming  fell  far  short  of  that  against  horse  racing  in  efficiency. 
It  professed  to  be  "  An  act  against  excessive  and  deceitful  gam- 
ing," and  it  contained  some  wholesome  provisions.  It  repressed 
and  punished  with  due  severity  all  deceit,  fraud,  cheating  and 
unfair  practices  in  the  species  of  gaming  it  prohibited,  and  in 


404  CASES  IN  THE  COURT  OF  APPEALS. 


Ruckman  r.  Pitcher. 


petting  upon  the  game ;  but  its  provisions  against  bets  and 
gaming,  as  being  themselves  illicit,  and  intended  to  be  repressed, 
were  not  sufficiently  comprehensive  and  coercive  to  make  them 
effectual.  The  statute  provided  and  declared  that  all  securities 
and  conveyances  for  money  or  property  won  by  play  at  any 
game,  or  by  betting  thereon,  or  bet  or  advanced  for  those  pur- 
poses, should  be  void,  and  losers  to  the  amount  of  $25  at  any 
one  time  or  sitting,  who  should  pay  the  same,  were  enabled  to 
iccover  back  the  same  at  any  time  within  three  months,  from 
the  winner,  with  costs.  By  the  5th  section  of  the  statute  to 
prevent  horse  racing,  and  for  other  purposes,  subsequently  passed, 
it  was  in  substance  further  provided,  that  all  contracts  for,  or 
on  account  of,  any  money  or  other  thing  bet,  or  staked,  or  de- 
pending on  any  such  race,  (referring  to  the  race  before  men- 
tioned in  the  statute,)  or  concerning  the  same,  or  for  or  on 
account  of  any  gaming  by  lot  or  chance,  of  any  kind  or  descrip- 
tion, should  be  deemed  and  adjudged  void,  and  that  it  should 
be  lawful  for  any  person  who  might  have  paid  any  money  or 
other  thing  upon  the  issue  or  event  of  any  such  race  or  game, 
to  recover  the  same  in  like  manner  as  provided  in  the  2d  and 
3d  sections  of  the  act  entitled  an  act  against  excessive  and  de- 
ceitful gaming.  And  by  those  sections  of  that  act  the  action 
was  to  be  brought  within  three  months,  and  was  to  be  against 
the  winner.  These  provisions  and  penalties  were  thus  limited 
to  the  species  of  gaming  by  play  at  any  game,  or  by  lot  or 
chance  ;  to  bets  upon  such  gaming,  and  to  money  lent  for  those 
purposes  ;  and  the  action  given  to  the  loser  was  limited  to  three 
months,  and  to  be  against  the  winner  only — provisions  of  much 
importance  and  use  indeed,  but  obviously  inadequate  to  the 
suppression  of  the  offences  they  were  intended  to  prohibit  and 
prevent. 

The  revised  statutes  which  went  into  operation  in  183(1,  fully 
supplied  the  deficiency,  and  indeed  have  gone  the  whole  length 
of  prohibiting  all  wager?,  bets,  and  stakes  upon  any  contingent 
or  unknown  event,  with  the  exception  only  of  contracts  of  insu- 
rance, and  upon  bottomry  and  respondentia,  and  have  enabled 
the  loser  to  recover  the  money  wagered  and  lost,  not  only  of  tho 


ROCHESTER,  JUNE,  1848.  495 


Ruckman  r.  Pitcher. 


winner,  but  also  of  the  stakeholde  ,  notwithstanding  that  he 
may,  after  the  loss  of  the  bet,  have  paid  the  same  over  to  the 
winner.  It  was  manifestly  the  intention  of  the  legislature  to 
suppress  and  prohibit  every  species  of  wager  and  bet,  either  up- 
on the  racing  of  animals,  or  upon  any  contingent  or  unknown 
event  whatsoever,  other  than  the  contracts  expressly  excepted, 
and  to  abolish  all  distinction  between  lawful  and  unlawful  wa- 
gers, and  make  them  all  invalid  and  void.  As  one  of  the  best 
and  surest  means  of  accomplishing  that  end,  the  provision  was 
adopted  enabling  and  authorizing  the  loser  to  sue  for  and  re- 
cover back  his  stake  or  deposit  from  the  stakeholder,  whether 
the  race  or  game  may  have  been  lost  or  not,  or  the  money  paid 
over  to  the  winner  or  not.  Anterior  to  the  revised  statutes, 
questions  were  liable  to  occur  upon  the  legality  of  the  wager, 
and  the  provisions  and  penalties  applied  by  the  laws  to  the  pre- 
venting or  the  suppression  of  those  adjudged  to  be  unlawful, 
might  be  evaded  by  the  betters,  or  might  prove  inadequate  to 
the  effectual  restraint  of  the  offence.  And  the  action  given  by 
the  statutes  to  the  loser  to  recover  back  the  money  lost  and  paid 
by  him,  was  too  limited  and  defective  to  be,  for  any  purpose,  a 
reliable  remedy.  For  the  provision  giving  the  action  limited 
the  time  for  the  commencement  of  it  to  the  short  space  of  three 
months,  and  applied  it  to  the  winner,  without  any  notice  of  the 
stakeholder  or  reference  to  him.  The  remedy  thereby,  upon  a 
strict  construction  of  the  act.  would  be  against  the  winner  alone  ; 
or  if  the  terms  of  the  5th  section  of  the  act  against  horse  racing 
admitted  of  an  exposition  sufficiently  broad  to  include  the  stake- 
holder, in  the  cases  to  which  that  section  refers,  as  being  a  party 
to  whom  the  loser  had  paid  the  money  he  sought  to  recover 
back,  the  action  for  it,  against  him,  to  be  effectual,  must  be 
brought  before  the  same  was  in  good  faith  paid  over  to  the  win- 
ner. And  it  is  quite  obvious  that  the  payment  over  of  the  stakes 
to  the  winner  may  be  made  so  promptly  upon  the  decision  of 
the  race  or  game,  as  not  to  allow  sufficient  time  to  the  loser  to 
arrest  it,  by  his  action,  in  the  hands  of  the  stakeholder,  and 
that  the  loser's  recourse  to  the  stakeholder  would  thus  be  frus- 
trated. 


406  CASES  IN  THE  COURT  OF  APPEALS. 

Ruckman  r.  Pitcher. 

But  under  the  provisions  of  the  revised  statutes,  those  diffi- 
culties and  doubts  cease  to  exist.  The  article  entitled  "  of  bet- 
ting and  gaming,"  is  general,  comprehensive  and  explicit.  It 
embraces  and  embodies  the  pre-existing  restraints  upon  betting 
and  gaming,  with  the  further  provision  making  the  stake  or 
deposit  of  the  loser  recoverable  by  him  of  the  stakeholder,  either 
before  or  after  the  loss  of  the  race  or  game,  notwithstanding 
that  the  same  may  have  been  paid  over  to  the  winner,  and 
whether  the  same  has  been  thus  paid  over  or  not.  This  fur- 
ther provision  thus  rendering  the  payment  over  of  the  stake  to 
the  winner  of  no  avail  to  the  stakeholder  as  a  defence  to  the 
action  of  the  loser  against  him  under  the  statute  for  the  recov- 
ery of  it  back,  gives  to  the  present  system  a  decided  advantage 
over  that  which  preceded  it,  for  suppressing  the  obnoxious  prac- 
tices of  betting  and  gaming.  And  if  full  effect  be  given  to  it, 
and  it  shall  be  fairly  applied  and  carried  out,  it  must  have  an 
efficient  agency  in  the  accomplishment  of  the  purposes  of  the 
statute.  But  to  give  it  that  effect,  the  loser's  assent  to  the  pay- 
ment over  of  the  stake,  or  his  order  directing  it,  must  not  be 
allowed  to  affect  the  stakeholder's  liability  :  for  when  the  wager 
is  upon  an  event  or  contingency  unknown  to  both  the  parties 
and  the  result  is  uninfluenced  by  either  of  them,  and  no  decep- 
tion, fraud  or  unfair  practice  is  imputable  to  the  winner,  the 
loser  will  very  rarely  dissent  from  the  payment  of  the  stake  to 
the  winner ;  but  will,  when  present  and  called  upon  for  his 
consent,  usually  acknowledge  the  winner's  claim,  and  authorize 
the  payment  of  the  stake  for  him  by  the  stakeholder  accord- 
ingly. To  allow  such  consent  and  authority  of  the  loser,  so 
given  by  him,  to  be  a  sufficient  warrant  to  the  stakeholder  to 
pay  over  the  money,  and  an  effectual  defence  to  the  action  of 
the  loser  against  him,  would  be  to  open  the  door  to  evasions  of 
the  statute,  which  would  essentially  impair  its  provisions  and 
render  it  altogether  inadequate  to  the  purposes  for  which  it  was 
intended.  The  statute,  to  be  effectual,  must  be  construed  and 
held  to  provide  that  no  payment  of  the  stakes  by  the  stake- 
holder to  the  winner,  either  without  the  consent  of  the  loser  or 
with  such  consent,  shall  be  a  defence  for  the  stakeholder  to  the 


ROCHESTER,  JUNE,  1848.  407 

Ruckmun  r.  Pitcher. 

action  of  the  loser  against  him  for  the  same.  That  such  was 
the  intention  of  the  framers  of  the  statute,  the  defects  in  the  pre- 
existing- laws  which  the  further  provision  of  this  statute  was 
intended  to  supply,  the  remedy  it  provides,  and  the  language  it 
employs,  appear  to  me  to  fully  and  clearly  evince.  It  was  the 
agency  and  concurrence  of  the  loser  in  giving  effect  to  the  ille- 
gal contract  of  wager,  and  chiefly  the  consent  and  direction  so 
habitually  given  by  the  loser,  to  the  payment  of  the  stakes  to 
the  winner,  which  under  the  former  system  rendered  the  pro- 
visions of  law  against  betting  and  gaming  so  ineffectual ;  and 
it  was  to  provide  a  remedy  for  that  evasion  of  the  former  stat- 
utes, that  the  action  was  given  to  the  loser  in  its  present  ampli- 
tude, vesting  in  him  the  unqualified  right  to  recover  back  his 
deposit  from  the  stakeholder  who  had  paid  it  over  to  the  winner. 
The  language  of  the  statute  giving  the  action  is  full,  clear  and 
explicit ;  the  right  to  sue  for  and  recover  the  deposit  of  the 
stakeholder  is  unconditional,  and  applies  to  all  cases  of  deposits 
and  stakes,  whether  the  bet  is  lost  or  not,  or  the  stake  is  paid 
over  or  not.  The  statute  makes  no  exception  of  payments 
with  the  consent  or  by  the  order  of  the  loser,  and  the  court  can 
make  none. 

It  is  incorrect  and  unjust  to  predicate  of  this  denial  of  effect 
to  such  consent  of  the  loser  of  the  bet,  that  it  encroaches  upon 
his  right  to  the  free  disposition  of  the  fund,  or  interfered  with 
his  power  over  it.  He  had  a  perfect  right  and  was  at  full  lib- 
erty to  dispose  of  it  as  he  pleased,  and  to  order  and  direct  it  to 
be  paid  by  the  defendant  to  any  person  whomsoever,  other  than 
the  winner  as  being  entitled  thereto  on  the  ground  that  he  had 
won  the  wager.  The  plaintiff  in  error,  being  the  owner  of  the 
money,  had  the  right  to  call  upon  the  stakeholder  for  it  him- 
self, or  to  dispose  of  it  to  others,  and  order  and  direct  the  pay- 
ment of  it  to  them  ;  and  the  payment  of  it  to  such  order  by  the 
defendant  would  be  perfectly  regular,  and  would  discharge  him 
from  his  liability  therefor  to  the  plaintiff.  But  the  plaintiff  in 
error,  as  loser,  could  not  direct  the  payment  of  the  stake  to  the 
winner  as  being  won  by  him.  Such  order  and  direction,  and 
the  payment  under  it,  would  be  in  consummation  of  the  un- 


408     CASES  IN  THE  COURT  OF  APPEALS. 

Rucknian  t>.  Pitcher. 

lawful  bet,  and  if  permitted  would  give  effect  to  the  contract 
which  the  statute  declares  to  be  void. 

If  such  order  and  direction  of  the  loser  to  the  stakeholder  to 
pay  over  the  stakes  to  the  winner,  could  have  the  efficacy  as- 
cribed to  it  by  the  defendant  in  error,  it  must  be  either  because 
the  payment  over  of  the  money  is  by  such  consent  and  direction 
authorized  and  made  a  legal  and  valid  payment,  or  because 
the  loser  who  gives  it  precludes  himself  thereby  from  afterwards 
contesting  its  validity  or  asserting  a  claim  to  the  money  after 
his  waiver  of  his  right  to  it,  and  in  disaffirmance  of  his  own 
disposal  of  it  to  another  person.  In  questions  between  parties 
to  contracts  and  transactions,  on  common  law  principles,  where 
no  statute  rule  intervenes,  those  grounds  of  objection  to  a  plain- 
tiff's right  of  action  would  be  available,  and  might  be  conclu 
sive.  But  in  the  application  of  statutory  provisions,  the  rules 
given  by  the  statute  are  to  govern.  The  statute  under  consid 
eration,  which  makes  the  wager  illegal,  and  the  contract  void 
implicates  the  stakeholder  in  the  illegality ;  and  to  render  the 
remedy  it  provides  against  him  effectual,  authorizes  and  enables 
the  depositor  to  recover  back  a  stake  deposited  with  him  as 
stakeholder,  after  he  has  paid  it  over,  and  notwithstanding  such 
payment.  He  therefore  cannot  exonerate  himself  from  his 
liability  to  the  action  of  the  loser  for  the  deposit,  by  paying  the 
money  over,  but  must  continue,  notwithstanding  such  payment, 
amenable  to  the  loser  for  it.  And  any  consent  or  order  of  the 
loser  to  him  to  pay  it  over,  as  it  contravenes  the  spirit  and  in- 
tention of  the  statute,  and  tends  to  impede  its  operation  and 
frustrate  its  design,  must  be  nugatory  and  inoperative. 

In  ihe  case  of  Lewis  v.  Miner.  (3  Dcnio,  103,)  it  was  con- 
tended that  the  loser,  by  the  payment  or  delivery  over  of  the 
money  or  thing  wagered,  consented  to  part  with  the  property, 
and  had  no  remedy  by  the  common  law  to  recover  it  back. 
Such  was  admitted  to  be  the  common  law  rule,  but  the  court 
held  that  the  statute  nullifies  the  consent,  and  gives  the  loser 
a  remedy  by  action.  The  demand  was  there  against  the  winner ; 
but  the  question  was  on  the  effect  of  the  consent  of  the  loser  to 
part  with  his  property,  and  upon  his  right  of  action  to  recover  it 


ROCHESTER,  JUNE,  1848.  499 


Ruckman  v.  Pitcher. 


back ;  and  the  opinion  expressed  by  the  chief  justice  was,  that 
the  statute  "  nullified  the  consent,"  and  gave  the  loser  a  remedy 
by  action.  How  are  we  to  distinguish  that  case  in  principle 
from  this  ?  The  point  was  that  the  statute  nullified  the  con 
sent  of  the  loser  to  the  payment  of  the  wager  when  lost  to  the 
winner.  And  if  the  payment  of  it  direct  to  the  winner  is  nul- 
lified, must  not  the  consent  and  direction  to  the  stakeholder  to 
pay  it  over  be  equally  inoperative  and  void?  The  stakeholder 
is  the  agent  of  the  better,  and  takes  the  money  deposited  in 
his  hands  as  the  better's  stake,  under  the  express  or  implied 
engagement  to  pay  it  over  when  lost  and  won,  to  the  winner. 
If  the  wager  had  been  lawful,  and  the  contract  valid,  he  would 
need  no  other  or  farther  assent,  order  or  authority  from  the 
loser  to  pay  it  over ;  or  if  the  statute  had  left  the  stakeholder  at 
liberty  to  fulfil  his  engagement,  and  had  not  interdicted  the 
payment  of  the  stakes  to  the  winner,  such  payment  would  have 
exonerated  him  from  his  liability.  But  the  statute,  by  giving 
the  loser  an  action  against  him  for  the  money,  after  the  pay- 
ment of  it  over  by  him  to  the  winner,  has,  in  effect,  interdicted 
such  payment  over,  and  made  the  same  ineffectual  and  of  no 
avail  to  him  as  a  defence  to  the  action  of  the  loser  against  him. 
The  authority  given  by  the  original  deposit  to  pay  over  the 
stake  upon  the  loss  of  the  bet  to  the  winner,  is  necessarily  nul- 
lified by  the  provisions  of  the  statute  giving  the  loser  a  remedy 
by  action  to  recover  it  back ;  and  the  repetition  of  that  au- 
thority by  the  consent  and  direction  given  immediately  after 
the  loss,  to  pay  the  same  over,  cannot  surely  give  validity  to  a 
payment  which  the  statute  thus  impliedly  interdicts.  Such 
subsequent  consent  and  direction  is  in  effect  nothing  more 
than  the  affirmance  of  the  contract  and  authority  created  and 
given  by  the  original  deposit,  and  an  order  and  direction  to 
fulfil  and  perform  it  in  disregard  of  the  statute. 

In  the  case  of  Ruckman  v.  Bryan,  (3  Dcnio,  340.)  the  de- 
fendant had  borrowed  a  sum  of  money  of  the  plaintiff  to  bet  on 
a  horse  race,  which  had  been  deposited  with  a  stakeholder,  by 
whom  the  same,  on  the  decision  of  the  race,  had  been  paid 
over  to  the  winner.  The  defendant,  who  was  the  borrower,  had 

VOL.  I.  52 


410  CASES  IN  THE  COURT  OF  APPEALS. 


Ruckman  v.  Pitcher. 


afterwards  promised  to  pay  the  loan  to  the  plaintiff;  and  ac- 
tion was  by  the  lender  against  the  borrower  for  the  money. 
The  court  wholly  disregarded  the  subsequent  promise  of  the 
borrower,  made  after  the  loss  of  the  race,  to  repay  the  loan ; 
and  held  such  loan  to  be  illegal,  and  the  money  lent  irrecover- 
able by  the  lender  of  the  borrower.  So  here,  the  payment  over 
of  the  stakes  by  the  stakeholder  to  the  winner,  being  in  itself 
inoperative  as  a  discharge  of  his  liability,  the  consent  or  direc- 
tion of  the  loser  to  him  to  pay  the  same  over,  could  not  impart 
to  it  the  force  and  validity  of  a  duly  authorized  and  available 
payment.  Such  payment  of  the  money  wagered,  by  the  stake- 
holder to  the  winner,  on  the  ground  that  he  had  won  the  wager, 
whether  with  or  without  the  consent  and  direction  of  the  loser, 
is  the  payment  of  an  illegal  bet,  in  consummation  of  an  un- 
lawful and  void  contract.  The  order  or  direction  of  the  loser 
to  the  stakeholder  to  pay  it,  cannot  and  does  not  change  the 
nature  or  character  of  the  payment.  And  no  such  consent  or 
direction  can,  in  my  judgment,  be  a  defence  for  the  stakeholder 
against  the  action  of  the  loser  given  to  him  by  the  statute. 
Such,  I  understand  to  be  the  rule  laid  down  in  the  case  of 
Lewis  v.  Miner  as  applicable  to  the  case  of  an  action  by  the 
loser  against  the  winner.  And  it  appears  to  me  to  be  equally 
applicable  to  the  case  of  an  action  against  the  stakeholder. 

I  am,  however,  not  to  be  understood  to  hold  that  the  money 
wagered  and  deposited  with  a  stakeholder  can,  under  no  cir 
cumstances,  be  directed  by  the  depositor,  after  the  loss  of  the 
wager  by  him,  to  be  paid  to  the  person  with  whom  the  bet  was 
made;  but  if  such  direction  of  the  loser  can,  consistently  with 
the  terms  and  policy  of  the  statute,  be  allowed  in  any  case, 
(other  than  an  actual  bona  fide  purchase,)  to  avail  the  stake- 
holder for  his  justification,  it  must  surely  be  on  the  ground  that 
such  consent  and  direction  have  been  freely  given  for  the  pay- 
ment of  it,  not  as  money  to  be  paid  over  to  a  winner  as  a  stake 
won  by  him,  and  thereby  become  his  money,  but  as  money  of 
the  loser,  directed  by  him  to  be  paid  to  the  winner,  not  as  hav- 
ing any  right  to  it,  but  as  the  free  and  voluntary  gift  and 
gratuity  of  the  loser  to  him.  It  would  be  highly  improl  able, 


ROCHESTER.  JUNE,  1848. 


Ruckman  v.  Pitcher. 


I  will  not  say  impossible,  that  any  such  case  should  ever  occur, 
and  in  perfect  good  faith  exist.  And  I  hold  it  to  be  clear  that 
no  consent  or  order  of  the  loser  to  pay  the  money  or  stakes  lost 
to  the  winner,  as  money  won  by  him.  can  in  any  case  give  the 
winner  any  claim  thereto,  or  the  stakeholder  any  right  or 
authority  to  pay  the  same  to  him.  The  stakeholder  can  con- 
sequently avail  himself  of  no  such  consent  or  direction  as  an 
authority  to  him  to  pay  the  loser's  deposit  to  the  winner  as 
money  or  stakes  won  by  him  on  the  issue  of  the  race  or  game, 
nor  claim  the  benefit  of  such  payment  as  a  defence  to  the 
action  of  the  loser  against  him  for  the  deposit. 

In  this  case  it  is  admitted  and  avowed  that  the  money  was  paid 
by  the  defendant  to  the  winner  as  money  won  by  him  on  the  race. 
The  judge,  in  his  charge  to  the  jury,  instructed  them  that  if 
the  money  was  paid  to  Minturn  after  the  race,  as  winner  of  the 
stakes,  by  and  with  the  approbation  and  consent,  and  upon  the 
order  of  the  plaintiff,  such  payment  was  a  bar  to  the  plaintiff's 
right  of  action  against  the  defendant.  This  direction,  in  our 
view  of  the  law  was  clearly  incorrect,  and  vitiates  the  verdict. 
The  jury  could  not,  if  guided  by  it,  find  otherwise  than  they 
did.  The  proof  was  full  and  clear  that  the  money  was  paid  to 
Minturn  after  the  race,  as  winner  of  the  stakes,  with  the  con- 
sent of  the  plaintiff  in  error,  given  on  the  race-course  at  the 
time  the  race  was  run  and  the  result  announced.  It  was  paid 
as  money  lost,  and  received  as  the  stakes  won  upon  the  race. 
Such  payment  must,  I  think,  be  deemed  as  fully  within  the 
provisions  of  the  statute,  as  a  payment  by  the  loser  himself  to 
the  winner  would  be. 

But  again,  it  is  objected  that  as  the  payment  of  the  stakes 
by  the  stakeholder  to  the  winner  gives  the  loser  a  right  of  action 
against  the  winner  for  the  recovery  of  the  same  from  him,  the 
proper  resort  of  the  loser  is  to  him,  and  recourse  cannot  be  per- 
mitted to  the  stakeholder  also,  as  a  double  satisfaction  might 
thereby  be  obtained.  It  is  a  sufficient  answer  to  this  objection, 
that  the  statute  in  express  terms  authorizes  the  loser  to  sue  for 
and  recover  his  deposit  or  stake  of  the  stakeholder,  whether  he 
has  paid  the  same  over  to  the  winner  or  not.  The  loser,  as- 


412  CASES  IN  THE  COURT  OF  APPEALS. 

,  Ruckman  v.  Pitcher. 

suming  that  he  would  be  confined  to  one  satisfaction,  might 
surely  have  concurrent  remedies  therefor,  against  both  the 
stakeholder  who  paid  over  the  stake,  and  the  winner  to  whom 
it  was  paid,  and  be  entitled  to  take  his  remedy  against  either 
of  them,  and  against  the  stakeholder  in  the  first  instance.  He 
consequently  must  have  the  right  to  prosecute  his  action  against 
such  stakeholder  to  judgment  and  execution,  and  could  not  be 
turned  round  to  his  action  against  the  winner,  and  thus  be 
driven  to  a  remedy  against  a  party  who  might  be  irresponsible 
and  unable  to  pay.  Whether  the  loser  would  have  the  right  to 
pursue  the  winner  after  a  fruitless  recovery  against  the  stake- 
holder, or  be  entitled  to  other  or  double  satisfaction,  are  ques- 
tions with  which  we  have  nothing  to  do  in  this  action.  If  he 
is  restricted  to  a  single  satisfaction,  and  obtains  it  in  his  action 
against  the  stakeholder,  the  fact  of  such  satisfaction  so  obtained 
in  such  suit  would  be  available  to  the  winner  as  a  defence  to 
an  action  for  the  same  cause  against  him. 

The  objection  of  the  non-joinder  of  other  parties  having  an 
interest  in  the  bet,  as  plaintiffs,  assumes  that  others  were  inter- 
ested with  the  plaintiff  in  error  in  the  bet,  and  that  their  interest 
made  them  necessary  parties  to  the  suit.  It  does  appear  that 
the  money  wagered  and  staked  did  not  belong  wholly  to  the 
plaintiff  in  error.  Two  of  the  witnesses  testify  to  contribution 
by  them  to  make  up  the  sum,  one  to  the  amount  of  $100,  the 
other  to  $50,  and  each  of  them  slates  that  he  paid  to  the  plain- 
ti!F  his  contribution,  and  avers  that  he  had  not  authorized  thi.s 
suit  for  his  part  of  the  stakes.  There  may  have  been  other 
contributors,  who,  or  some  of  them,  may  have  paid  their  contri- 
butions ;  and  as  respects  some  of  those  shares  and  interests  in 
the  deposit,  the  right  of  the  plaintiff  in  error  to  recover  may  be 
questionable  :  but  if  the  shares  of  those  who  disapproved  acting 
are  to  be  disallowed,  and  even  if  in  addition  thereto  the  interest 
of  all  other  contributors  shown  to  have  an  interest  in  the  bet 
are  also  to  be  excluded,  the  plaintiff  in  error  would  still  be  enti- 
tled, if  his  action  was  otherwise  maintainable,  to  recover  the 
esidue  of  the  sum  wagered  and  bet  shown  to  belong  to  others. 
Ind  so  the  judge  in  effect  decided  ;  for  he  instructed  the  jury 


ALBANY,  SEPTEMBER,  1848. 


413 


Cayuga  County  Bank  r.  Warden. 


that  the  plaintiff,  if  entitled  to  recover,  was  entitled  to  recovei 
the  amount  of  the  money  bet  and  lost  by  him,  less  the  twc 
sums  of  $50  and  $100,  belonging  to  persons  who  had  not 
authorized  the  suit. 

But  it  is  further  objected  that  no  demand  is  shown  to  have 
been  made  of  the  return  or  repayment  of  the  money  before  the 
commencement  of  the  action.  The  answer  is,  that  no  demand 
was  necessary.  The  statute  makes  the  stakeholder  liable  ab- 
solutely and  at  all  events,  and  gives  the  loser  an  immediate 
right  of  action  against  him.  No  demand  could  be  necessary  ; 
especially  in  a  case  like  this,  where  the  money  had  been  actually 
paid  over  to  the  winner.  Whether  a  previous  demand  would 
have  been  necessary  or  proper,  if  the  action  had  been  brought 
before  the  race  was  run,  and  when  the  event  on  which  the  bet 
depended  was  still  contingent  and  undetermined,  or  the  action 
might  even  in  that  case  have  been  brought  and  maintained 
without  any  previous  demand,  it  is  not  necessary  now  to  in- 
quire, for  this  defendant'  has  actually  paid  over  the  stakes  to 
the  winner ;  and  as  such  payment,  over  was,  in  our  view  of  it. 
without  sufficient  authority  and  in  his  own  wrong,  he  made 
himself  liable  to  an  immediate  action  against  him,  and  a  pre- 
vious demand,  if  otherwise  prooer,  would  be  unnecessary.  The 
judgment  must  be  reversed. 

Judgment  reversed. 

BRONSON,  J.  dissented. 


2 
6 

THE  CAYUGA  COUNTY  BANK  vs.  WARDEN  and  GRTSWOLD.    s  6 

e  9 

d!9 
Due  presentment  for  payment  and  notice  of  non-payment  are  conditions  precedent 

to  the  liability  of  an  endorser  of  a  promissory  note. 

No  precise  form  of  words  is  necessary  in  giving  notice.  It  is  sufficient  if  the  lan- 
guage used  is  such  as  to  convey,  either  in  express  terms  or  by  necessary  implica- 
tion, notice  to  the  endorser  of  the  identity  of  the  note,  and  that  payment,  on  due 
presentment,  has  been  neglected  or  refused  by  the  maker. 

Where  a  notice  misdescribes  the  note  in  some  particular,  it  may  he  shown  in  aid  of 
the  defect  that  there  was  no  other  note  in  existence  to  which  the  description  con- 
tained in  the  notice  could  he  applied. 


413 


28 
36 
ITr 


414  CASES  IN  THE  COURT  OF  APPEALS. 

Cayuga  ^County  Bank  v.  Warden. 

A  notice  of  protest  need  not  in  terms  state  that  a  demand  has  been  made  upon  the 
maker.  It  is  sufficient  if  it  state  that  the  note  has  been  protested  for  non-payment. 

The  defendants  were  endorsers  upon  a  note  for  $600,  payable  to  their  joint  order  at 
the  plaintiffs'  bank.  The  notices  of  protest  were  dated  at  the  bank  on  the  last  day 
of  grace,  and  were  addressed  to  the  defendants  severally.  They  had  the  character 
and  figures  "  $600"  in  the  margin.  In  the  body  they  ran  thus  :  "  Sir ;  take  no- 
tice that  S.  Warden's  note  for  three  hundred  dollars,  payable  at  this  bank,  endorsed 
by  you,  was  this  evening  protested  for  non-payment,  and  the  holders  look  to  you 
for  the  payment  thereof."  It  was  proved  that  there  was  no  other  note  in  the  bank 
made  by  S.  Warden  and  endorsed  by  the  defendants.  Held,  that  the  notice  was 
sufficient  to  charge  the  endorsers. 

ERROR  from  the  supreme  court,  where  the  action  was  as- 
sumpsit,  tried  at  the  Cayuga  circuit  before  MAYNARD,  J.  in 
January,  1848.  The  plaintiffs  claimed  to  recover  the  amount 
of  a  promissory  note  made  by  S.  Warden  and  endorsed  by  the 
defendants,  in  these  words : 

"$600.  Ninety  days  after  date  I  promise  to  pay  to  the 
order  of  F.  L.  Griswold  and  E.  A.  Warden  six  hundred  dollars 
for  value  received,  at  the  Cayuga  County  Bank. 

Auburn,  N.  Y.  January  30,  1848.  S.  WARDEN. 

(Endorsed)         F.  L.  Griswold. 
E.  A.  Warden." 

The  note  at  its  maturity  was  in  the  plaintiffs'  bank,  and  was 
protested  for  non-payment.  A  notice  of  protest  was  served  on 
each  of  the  defendants,  addressed  to  them  severally,  and  was 
in  these  words : 

•'  600.  Cayuga  County  Bank,  Auburn,  May  3,  1845. 

Sir :  Take  notice  that  S.  Warden's  note  for  three  hundred 
dollars,  payable  at  this  bank,  endorsed  by  you,  was  this  evening 
protested  for  non-payment,  and  the  holders  look  to  you  for  the 
payment  thereof.  Your  obedient  servant, 

P.  B.  EATON,  Notary  Public." 

It  was  proved,  under  objection  by  the  defendant's  counsel, 
that  the  above  note  was  given  in  renewal  for  a  balance  of  a 
previous  note  signed  by  S.  Warden  and  endorsed  by  the  defen- 
dants, due  the  llth  November,  1844;  also  that  the  note  in 
question  was  the  only  note  in  the  bank,  made  by  S.  Warden, 
and  endorsed  by  the  defendants. 


ALBANY,  SEPTEMBER,  1848. 


Cayuga  County  Bank  ».  Warden. 


The  above  facts  appearing,  it  was  insisted  on  the  part  of  the 
defendants,  that  they  were  not  properly  charged  as  endorsers, 
and  the  following  grounds  were  urged  :  1.  The  notice  of 
protest  was  not  upon  the  note  in  question,  but  was  a  notice  of 
protest  of  a  note  for  $300.  2.  The  note  in  question  is  made 
payable  to  the  order  of  the  defendants  jointly,  and  the  notice 
of  protest  speaks  only  of  an  individual  endorsement,  and  is  ad- 
dressed to  the  defendants  severally.  3.  The  plaintiffs  had  no 
right  to  show  that  the  defendants  were  not  misled  by  the  notice. 
4.  Even  if  the  note  had  been  correctly  described  in  the  notice, 
still  such  notice  was  defective  in  not  stating  that  payment  had 
been  demanded  and  refused,  and  when  the  note  was  made, 
and  when  it  became  due  and  payable.  MAYNARD,  J.  held  that 
the  notice  was  not  sufficient  to  charge  the  defendants  as  en- 
dorsers, and  that  the  plaintiffs  could  not  recover.  The  plain- 
tiffs excepted,  and  had  a  bill  of  exceptions  duly  signed  and 
sealed,  on  which  the  supreme  court  sitting  in  the  seventh  dis- 
trict, gave  judgment  for  the  defendants. 

John  Porter,  for  the  plaintiffs  in  error.  The  notice  of  protest 
served  on  the  defendants  was  a  sufficient  notice  to  charge  them 
as  endorsers  of  the  note  in  question  ;  for  it  informed  the  defen- 
dants with  all  reasonable  certainty,  that  this  note  for  $600  had 
not  been  paid  by  the  maker,  and  that  the  same  had  been  de- 
manded at  the  time  and  place  of  payment,  aftid  payment  re- 
fused. (Reedy  \.  Seixasfi  John.  Ca.  337  ;  Bank  of  Roches- 
ter v.  Gould,  9  Wend.  279  ;  Bank  of  Alexandria  v.  Swan,  9 
Peters,  33  ;  Mills  v.  Bank  of  the  U.  S.  11  Wheat.  431  ;  Re- 
mer  v.  Downer,  23  Wend.  620  ;  Kilgore  v.  Bulkley,  14  Conn. 
362  ;  Crocker  v.  Getchell,  10  Shep.  392  ;  Story  on  Prom.  Notes, 
§  349,  354.) 

As  no  particular  form  of  a  notice  of  protest  is  prescribed  by 
law,  the  object  being  merely  to  inform  the  endorser  of  the  de- 
mand, and  non-payment  by  the  maker,  and  that  he  is  held  lia 
ble  for  the  payment  of  the  note,  if  the  amount  had  been  omitted 
it  would  still  have  been  sufficient  to  identify  the  note  and 


416  CASES  IN  THE  COURT  OF  APPEALS. 


Cayuga  County  Bank  v.  Warden. 


charge  the  endorsers  ;  and  therefore  that  portion  of  the  notice 
may  be  rejected  as  superfluous.  (Reedy  v.  Seixas,  supra.) 

It  is  not  necessary  to  state  in  a  notice  of  protest,  either  the 
date  of  the  note,  or  the  time  when  it  became  payable.  In  these 
respects  the  notice  in  this  case  is  in  the  same  form  with  that  in 
general  use  by  notaries,  as  is  proved  by  the  forms  of  notices 
given  in  decided  cases.  (Remer  v.  Downer,  23  I  Vend.  620 ; 
Bank  of  Rochester  v.  Gould,  9  id.  279  ;  Edmonds  v.  Cates,  2 
Lond.  Jur.  183  ;  Gurgeon  v.  Smith,  2  Nov.  <$•  Perry,  303  : 
Margeson  v.  Goble,  2  Chit.  R.  364 ;  Houlditc/t  v.  Cautty,  6 
Scott,  209.) 

The  statement  in  the  notice  served,  that  the  note  "  was  this 
evening  protested  for  non-payment,  and  that  the  holders  look 
to  you  for  the  payment  thereof,"  and  signed  by  a  notary,  is 
equivalent  to  saying  that  payment  of  the  note  had  been  de- 
manded by  him,  and  had  been  refused  ;  and  necessarily  implies 
that  he  had  demanded  payment  of  the  note,  according  to  its 
terms,  and  that  payment  had  been  refused.  (See  cases  last 
cited ;  Chit,  on  Bills,  Wth  Am.  ed.  467,  8,  9,  and  notes  ;  Mills 
v.  Bank  of  U.  &.  11  Wheat.  431 ;  Story  on  Prom.  Notes, 
§§350,  351,  352,  354.) 

The  note  is  made  payable  to  both  the  defendants,  and  is  en- 
dorsed by  them  individually,  and  the  notice  correctly  describes 
them  as  having  endorsed  individually;  the  law  only  requiring 
that  notice  should  be  served  upon  both,  as  was  done  in  this  case. 
' Xhcpcrd  v.  Hawlcy,  1  Conn.  368 ;  Willis  v.  Green,  5  Hill, 
232 ;  Story  on  Prom.  Notes,  §  308  ;  Sayre  v.  Prick,  7  Watts 
*$*  Scrg.  383.) 

W.  T.  Warden,  for  the  defendants  in  error,  insisted  that  the 
notice  of  protest  was  not  sufficient  to  charge  the  endorsers  ; 
and  cited  Reiner  v.  Downer,  (23  Wend.  620;)  Ransom  v. 
Mack,  (2  Hill,  587 ;)  Cayuga  Co.  Bank  v.  Dill,  (5  id.  403 ;) 
Esdaile  v.  Sower ly,  (11  East,  114;)  Staples  v.  Okines,  (1 
Esp.  R.  332  ;)  Free  v.  Hawkins,  (8  Taunt.  92  ;)  Peeking  v. 
Graham,  (I  Cramp,  ij*  Mees.725;)  Clcgg  v.  Cotton,  (3  Bos 
fy  Pull.  239  ;)  Prcdeaux  \.  Collier,  (3  Star/tie,  57;)  TindaL 


ALBANY,  SEPTEMBER,  1848. 


Cayuga  County  Bank  v.  Warden. 


v.  Brown,  (I  T.  R.  167;)  Chit,  on  Bills,  527,  8th  Lond.  ed.  , 
Thompson  on  Bills,  506  ;  Bank  of  Chenango  v.  Root,  (4  Cowen, 
126  ;)  Boulton  v.  Welsh,  (3  Bing.  N.  Cases,  688  ;  4  id.  411  ;) 
Messenger  v.  Southey,  (1  Man.  fy  Granger,  76  ;)  Strange  v. 
Price,  (10  Ad.  fy  E.  125  ;)  Hartley  v.  Case,  (4  Barn.  $<•  Cress. 
408  )  7  .Smg-.  jRep.  530,  533  ;  2  #e«.  £/ac&.  609  ;  Furze  v. 
Sharwood,  (2  ^rf.  #•  .EMis,  AT.  S.  388.) 


JEWETT,  Ch.  J.  There  is  no  question  but  that,  due  pre- 
sentment for  payment  and  notice  of  non-payment  to  the  en- 
dorsers of  a  promissory  note,  are  conditions  precedent  to  the 
liability  of  the  endorsers,  and  that  the  notice  may  be  either 
written  or  verbal.  (Cuyler  v.  Stevens,  4  Wend.  566.)  Such 
presentment  of  the  note  in  question  was  made  and  notice  of 
non-payment  in  the  form  shown  by  the  evidence  given.  The 
only  material  question  then  is,  whether  that  notice  is  sufficient. 
It  is  well  settled  that  there  is  no  precise  form  of  words  necessary 
to  be  used  in  giving  notice  ;  it  is  sufficient,  if  the  language 
used  is  such,  as,  in  express  terms  or  by  necessary  implication, 
to  convey  notice  to  the  endorsers  of  the  identity  of  the  note,  and 
that  payment  of  it  on  due  presentment  has  been  neglected  or 
refused  by  the  maker. 

The  fact  which  was  necessary  to  be  established  by  the  plain- 
tiff' is,  that  the  defendants  had  due  notice  of  the  dishonor  of 
the  note  in  question.  The  notice,  such  as  it  is,  was  given  at  the 
precise  time  and  place  required  by  law.  The  evidence  shows 
that  this  note  was  given  for  a  balance  due  upon  and  in 
renewal  of  a  former  note  payable  at  the  same  bank  on  the  llth 
of  November,  1844,  made  by  S.  Warden  and  endorsed  by  the 
defendants,  to  whose  order  it  was  made  payable.  But  it  is  con- 
tended that  the  notice  merely  informs  the  defendants  of  the 
non-payment  of  a  note  drawn  and  endorsed  respectively  by  the 
defendants  for  $300,  and  not  of  a  note  for  $600,  endorsed  by 
the  defendants  jointly.  Concede  that  such  variance  or  mis- 
description  exists.  It  is  well  settled  in  accordance  with  good 
sense,  that  an  immaterial  variance  in  the  notice  will  not  vitiate  it. 
The  variance  must  be  such  as,  that  under  the  circumstances  of  the 

VOL.  I.  53 


418  CASES  IN  THE  COURT  OF  APPEALS. 

Cayuga  County  Bank  v.  Warden. 

case,  the  notice  conveys  no  sufficient  knowledge  to  the  en- 
dorsers of  the  identity  of  the  particular  note  which  has  been 
dishonored.  (Mills  v.  The  Bank  of  the  U.  S.  11  Wheat.  431 ; 
Bank  of  Alexandria  v.  Swann,  9  Peters,  33.) 

Now  having  the  accessary  facts,  namely,  that  this  was  the 
only  note  in  this  bank  drawn  by  S.  Warden  and  endorsed  by 
the  defendants,  and  the  intimation  conveyed  by  the  figures 
"  $600"  upon  the  margin  of  the  notice,  who  can  doubt  but  that 
this  notice  conveyed  to  the  minds  of  the  defendants  the  informa- 
tion that  this  identical  note  had  been  dishonored,  although  it 
misdescribed  the  note  as  it  respects  the  sum  for  which  it  was 
made  in  the  body  of  it  ?  The  defendants  knowing  the  facts 
stated,  on  the  receipt  of  this  notice  could  not,  as  it  seems  to  me, 
fail  to  be  apprized  by  it  that  this  particular  note  had  been  dis- 
honored. It  was  said  on  the  argument,  that  the  notice,  to  be 
effectual,  must  be  perfect  on  its  face,  to  carry  the  information 
to  the  endorser  of  the  non-payment  of  the  note,  and  that  it 
could  not  be  aided  by  accessary  facts.  The  cases  of  Shelton 
v.  Braithwaite,  (7  Mees.  $•  Welsb.  430,)  and  Stockham  v.  Parr, 
(11  id.  809,)  are  very  much  in  point  to  show  that  a  notice,  de 
fective  on  its  face,  may  be  aided  by  such  facts,  and  that  it  is 
proper  to  consider  them  in  deciding  the  question  of  the  suffi- 
ciency of  such  notice. 

It  was  also  contended  that  the  notice  is  fatally  defective  and 
insufficient  to  charge  the  defendants  as  endorsers  of  the  note  in 
question,  on  the  ground  that  the  notice  describes  the  endorse- 
ment of  the  note  as  an  individual  and  not  a  joint  endorsement. 
The  note  is  drawn  payable  "  to  the  order  of  F.  L.  Griswold  and 
E.  A.  Warden,"  and  is  endorsed  by  the  payees  respectively.  In 
such  case  the  law  requires  notice  to  be  given  to  each  of  them, 
as  notice  to  one  will  not,  as  it  will  in  the  case  of  partners,  be 
deemed  notice  to  the  other.  (  Willis  v.  Green,  5  Hill,  232.) 

The  objection  rests  upon  the  ground  of  misdescription  of  the 
note  in  question  ;  that  the  receipt  of  this  notice  did  not  and  was 
not  calculated  to  inform  the  defendants  of  the  non-payment  of 
this  note ;  that  to  effect  such  object  this  notice  should  have 
described  the  note  as  having  been  endorsed  by  both  defen- 


ALBANY,  SEPTEMBER,  1848. 


Chretien  v.  Doney. 


dants.  It  seems  to  me  that  to  hold  in  conformity  with  thia 
objection  would  be  to  sacrifice  substance  to  the  merest  tech- 
nical formality ;  and  that  it  is  quite  impossible  not  to  see  that 
under  the  circumstances  of  this  case  the  notice  fully  informed 
the  defendants  that  this  particular  note  had  been  dishonored. 

Another  objection  to  the  notice  is  that  it  does  not  state  that 
payment  of  this  note  was  ever  demanded  or  that  it  was  refused, 
nor  when  nor  where  such  demand  was  made  and  payment 
refused.  The  notice  is  dated  "  Cayuga  County  Bank,  Auburn, 
May  3,  1845,"  and  states  that  S.  Warden's  note  for  $300,  pay- 
able at  this  bank,  endorsed,  &c.  "  was  this  evening  protested 
for  non-payment,  and  the  holders  look  to  you  for  the  payment 
thereof." 

The  case  of  Mills  v.  The  Bank  of  U.  S.  (11  Wheat.  431,)shows 
that  it  need  not  be  stated  in  the  notice  that  a  demand  of  payment 
was  made ;  that  it  is  sufficient  to  state  the  fact  of  non-payment 
of  the  note,  which  the  notice  in  this  case  alleges,  as  it  states  that 
the  note  was  protested  for  non-payment.  Whether  the  demand 
was  duly  and  regularly  made  is  matter  of  evidence  to  be  given 
at  the  trial ;  and  to  the  same  effect  is  the  case  of  Slacken  v. 
Collins,  (9  Carr.  fy  Payne,  653.)  I  am  of  opinion  that  the  no- 
tice under  the  circumstances  of  this  case  was  sufficient,  and 
that  the  court  below  erred  in  its  judgment ;  that  the  judgment 
should  be  reversed  with  a  venire  de  novo  by  that  court,  and  that 
the  costs  should  abide  the  event. 

Judgment  reversed. 


CHRETIEN  vs.  DONEY  and  others. 

A.  executed  to  B.  a  lease  of  certain  premises  for  one  year,  containing  a  clause  in 
these  words :  "  B.  to  have  the  privilege  to  have  the  premises  for  one  year,  one 
month  and  twenty  days  longer,  but  if  he  leaves  he  is  to  give  four  months  notice 
before  the  expiration  of  this  lease."  Held,  that  the  lease  created  a  term  for  the  full 
period  of  two  years,  one  month  and  twenty  days,  defeasible  at  the  election  of  the 
tenant,  after  one  year,  by  giving  notice  of  his  intention  to  leave  the  premises,  four 
months  previous  to  the  expiration  of  the  year. 


420  CASES  IN  THE  COURT  OF  APPEALS. 

Chretien  ».  Doney. 

Where  the  landlord  obtains  possession  of  the  demised  premises  by  summary  proce*  J- 
ings  which  are  reversed  in  the  supreme  court  upon  czrtiorari,  that  ccurt  should 
not  award  restitution  to  the  tenant,  if  the  term  has  expired  before  the  judgment 
of  reversal  is  rendered. 

ON  error  from  the  supreme  court.  John  Chretien,  on  the 
llth  day  of  March,  1846,  instituted  proceedings  before  a  su- 
preme court  commissioner,  under  the  statute  authorizing  sum- 
mary proceedings  to  recover  the  possession  of  demised  premises. 
In  his  affidavit,  presented  to  the  commissioner,  he  set  forth  a 
lease  under  seal,  executed  between  himself  and  John  Doney. 
dated  the  5th  of  March,  1S45,  whereby  he  demised  to  said  John 
Doney  certain  premises,  known  as  the  Farmers'  Exchange,  in 
the  city  of  Buffalo,  for  one  year  from  the  10th  day  of  March 
then  instant,  at  a  rent  of  five  hundred  dollars ;  fifty  dollars  pay- 
able down,  and  the  remainder  in  seven  equal  monthly  instal- 
ments, the  first  to  be  paid  on  the  10th  day  of  April  then  next. 
The  lease  contained  a  clause  by  which  it  was  to  become  void 
in  case  the  lessee  should  "  demise  or  assign"  the  premises  with 
out  the  consent  of  the  landlord.  The  last  clause  in  the  lease 
was  in  these  words  :  "  The  said  Doney  to  have  the  privilege 
to  have  the  premises  for  one  year,  one  month  and  twenty  days 
longer  ;  but  if  he  leaves  he  is  to  give  four  months'  notice  before 
the  expiration  of  this  lease."  The  affidavit  further  stated 
that  Giroux  and  Wilson,  or  one  of  them,  was  in  possession 
of  the  premises,  holding  the  same  as  the  assignees,  lessees, 
or  agents  of  said  John  Doney,  to  whom  said  Doney  had  sold  or 
assigned  his  interest  in  said  lease  before  the  expiration  of  the 
term;  that  the  said  John  Doney,  as  the  deponent  was  informed 
and  believed,  lived  at  Rochester ;  that  he  had  given  no  notice  of 
his  intention  to  hold  the  premises  after  the  10th  of  March,  1846  : 
and  that  the  said  Doney,  or  the  persons  above  named,  held 
over  and  continued  in  possession  of  the  premises,  after  the  ex- 
piration of  said  lease,  without  the  pcrmissioji  of  the  deponent. 
and  against  his  will. 

Upon  this  affidavit  the  commissioner,  on  the  4th  of  March, 
1846,  issued  his  summons  directed  to  Giroux,  Wilson,  and  Do- 
ney, and  requiring  them  to  remove  from  the  premises,  or  show 


ALBANY,  SEPTEMBER,  1848.  421 

Chretien  v.  Doney 

cause,  on  the  same  day  at  four  o'clock.  The  summons  was 
served  at  half  past  one  o'clock,  P.  M.,  of  the  same  day,  person- 
ally on  Wilson  and  Giroux,  and  on  Doney  by  delivering  a  copy 
to  Wilson,  a  person  of  mature  age,  residing  on  the  premises, 
Doney  being  absent  from  the  premises  and  in  the  city  of  Roch- 
ester, his  last  place  of  residence  being,  as  the  affidavit  of  service 
stated,  on  the  premises.  At  the  time  mentioned  in  the  sum- 
mons, Giroux  alone  appeared  before  the  commissioner,  and 
made  oath  in  writing  that  he  was  the  agent  of  Doney,  the  les- 
see, and  as  such  was  in  possession  of  the  premises  under  the 
same  lease  set  forth  in  the  landlord's  affidavit;  that  under 
the  last  clause  in  said  lease,  no  notice  was  necessary  unless 
the  lessee  concluded  to  surrender  the  premises ;  that  the 
said  "  Doney,  or  the  persons  named  in  the  affidavit  of  John 
Chretien,  are  not  holding  over,  and  do  not  continue  in 
possession  after  the  expiration  of  the  term,  without  permis- 
sion ;"  that  said  Doney  was  holding  the  premises  under  the 
lease  and  agreement  aforesaid,  and  intended  to  hold  for  one 
year,  one  month  and  twenty  days  from  the  10th  day  of  March, 
1846 ;  and  that  on  the  14th  day  of  February,  1846,  he  gave 
notice  of  such  intention  to  said  Chretien. 

Giroux  also  objected  before  the  commissioner  to  any  further 
proceedings  in  the  matter,  on  the  ground  that  it  did  not  appear 
by  the  affidavit  of  the  landlord  that  either  of  the  persons  sum- 
moned held  over  after  the  expiration  of  the  term  granted  by 
the  lease.  The  objection  was  overruled  by  the  commissioner, 
who  also  decided  that  John  Doney  himself  should  have  made 
the  affidavit  instead  of  Giroux,  no  reason  being  given  why  it 
was  not  made  by  Doney  ;  and  that,  even  if  the  affidavit  was 
properly  made  by  Giroux,  it  was  not  a  sufficient  denial  of  the 
facts  upon  which  the  summons  was  issued.  The  commissioner 
therefore  immediately  issued  his  warrant  of  removal  in  the 
usual  form,  under  which  the  landlord  was  put  in  possession  of 
the  premises.  The  supreme  court,  on  certiorari,  reversed  the 
proceedings,  and  awarded  restitution.  The  judgment  of  revei 
sal  and  restitution  was  rendered  in  December,  1847. 


422  CASES  IN  THE  COURT  OF  APPEALS. 

Chretien  v.  Doney. 

R.  Germain  $•  N.  Bennett,  for  the  plaintiff  in  error. 

J.  B.  Lathrop  fy  H.  Seymour,  Jr.  for  the  defendants  in  error. 

RUGGLES,  J.  The  lease  from  Chretien  to  Doney  was  a  lease 
for  one  year,  or  for  two  years,  one  month  and  twenty  days,  at  the 
option  of  Doney.  Doney's  election  to  give  up  the  premises  at  the 
end  of  the  first  year,  was  to  be  signified  by  a  notice  of  at  least  four 
months  before  the  expiration  of  that  year.  If  he  failed  to  give 
that  notice,  the  contract  became  a  lease  for  the  longer  time. 
No  new  writing  or  agreement  was  contemplated  between  the 
parties.  Although  the  amount  of  rent  and  the  time  or  times 
of  payment  for  the  extended  term,  are  not  expressed,  that  omis- 
sion is  supplied  by  construction  of  law.  The  right  to  hold 
during  the  extended  term  is  given  to  Doney  in  plain  and  ex- 
press language,  in  the  lease ;  and  the  legal  inference  is  that  he 
should  pay  rent  at  the  same  rate  as  for  the  shorter  term,  and 
at  corresponding  times.  The  rent,  therefore,  for  the  extended 
term  was  at  the  rate  of  $500  a  year — ten  per  cent,  of  which 
was  payable  at  the  commencement,  and  the  residue  in  seven 
equal  monthly  instalments. 

The  affidavit  of  the  landlord,  on  which  the  proceedings  be- 
fore the  commissioner  were  founded,  does  not  state  that  Doney 
gave  the  notice  mentioned  in  the  lease  that  he  intended  to 
leave  the  premises  at  the  expiration  of  the  first  year ;  and  this 
notice  was  necessary  to  put  an  end  to  the  lease  at  that  time. 
There  is  a  provision  in  the  lease  that  if  Doney,  the  tenant, 
should  assign  his  lease  without  the  consent  of  the  landlord, 
then  the  lease  should  determine  and  be  void.  And  the  land- 
lord, in  his  affidavit,  does  say  that  Doney  had  sold  or  assigned 
his  interest  in  the  lease  and  premises  before  the  expiration  of 
the  lease  ;  but  he  does  not  say  that  he  sold  or  assigned  without 
the  lessor's  consent. 

The  landlord,  in  his  affidavit,  therefore,  does  not  show  that 
the  tenant's  term  was  at  an  end,  either  by  lapse  of  time  or 
otherwise,  nor  is  there  enough  in  the  affidavit  to  show  the 
tenant's  possession  unlawful.  This  objection  to  the  sufficiency 


ALBANY,  SEPTEMBER,  1848.  423 

The  Mayor,  &c.  of  New- York  v.  Schermerhom. 

of  the  affidavit  was  made  before  the  commissioner,  and  over- 
ruled. The  commissioner  erred,  therefore,  in  proceeding  to 
remove  the  tenant,  and  the  supreme  court  was  right  in  revers- 
ing his  decision. 

But  when  the  judgment  of  the  supreme  court  was  rendered 
the  extended  term  of  the  lease  had  expired,  and  Doney's  right 
of  possession  had  ceased.  That  part  of  the  judgment  of  the 
supreme  court  which  restores  him  to  the  possession  of  the 
premises,  is  therefore  erroneous.  It  was  probably  entered  by 
the  attorney  without  being  so  ordered  by  the  court.  It  stands 
on  the  record,  however,  and  must  be  reversed. 

But  we  are  of  opinion  that  under  the  48th  section  of  the 
statute  under  which  this  proceeding  was  had,  (2  R.  S.  516,) 
the  supreme  court  had  the  power  of  giving  costs  on  the  reversal 
of  the  judgment  of  the  commissioner,  whether  they  awarded 
restitution  or  not.  The  judgment  of  the  supreme  court  ought 
therefore  to  be  affirmed  in  all  respects  except  as  to  the  award  of 
restitution.  That  part  of  it  should  be  reversed.  The  judg- 
ment being  reversed  in  part  and  affirmed  in  part,  neither  party 
should  recover  against  the  other  his  costs  on  the  writ  of  error 

in  this  court. 

Ordered  accordingly. 
JEWETT,  Ch.  J.,  dissented. 


1 

THE  MAYOR,  &c.  OF  NEW-YORK,  appellants,  vs.    SCHER- 
MERHORN  and  others,  respondents. 

5 

Where  the  decree  or  order  appealed  from  was  made  before  the  1st  of  July,  1848, 
when  the  code  of  procedure  took  effect,  the  right  of  appeal,  the  time  within  which 
it  must  be  brought,  and  the  form  of  bringing  and  prosecuting  it,  depend  upon  the 
law  as  it  stood  when  the  decision  was  made ;  but  where  the  decision  was  after 
that  day,  whether  in  a  suit  pending  on  that  day,  or  commenced  subsequently,  the 
right  of  appeal,  the  time  within  which  it  must  be  taken,  and  the  mode  ot  proce- 
dure, are  regulated  by  the  code. 

An  interlocutory  order  was  made  by  the  supreme  court  in  equity,  and  notice  thereof 
served  19th  May,  1848.  An  appeal  was  taken  July  24th,  1840;  Md,  that  such 
appeal,  being  barred  by  the  lapse  of  fifteen  days,  according  to  the  statute  in  force 
before  the  code  of  procedure  took  effect,  was  too  late. 


424     CASES  IN  THE  COURT  OF  APPEALS. 

The  Mayor,  &c.  of  New- York  v.  Schermcrhom. 

An  order  of  the  supreme  court  at  general  term,  denying  an  application  for  a  rehear- 
ing, is  interlocutory  within  the  meaning  of  the  statute  requiring  an  appeal  to  bo 
brought  within  fifteen  days. 

Mr.  Taber,  for  the  respondents,  moved  to  dismis§  two  ap- 
peals. On  the  1st  of  April,  1848,  a  decree  in  favor  of  Scher- 
merhorn  and  others  against  the  corporation  was  made  by  the 
supreme  court  in  special  term.  The  corporation  applied  to  the 
court  in  general  term  for  a  rehearing ;  the  motion  was  denied, 
and  notice  of  the  order  denying  the  motion  was  served  on  the 
19th  of  May.  The  corporation  appealed  from  both  orders  to 
this  court  on  the  24th  of  July. 

Mr.  Willard,  for  the  appellants. 

BRONSON,  J.  No  appeal  will  lie  to  this  court  from  an  order 
or  decree  of  the  supreme  court  made  at  a  special  term.  ( Grade 
v.  Freeland,  ante  p.  228.)  And  that  appeal  must  therefore 
be  dismissed. 

The  order  made  at  the  general  term  denying  the  motion  for 
a  rehearing  was  not  a  final  decree ;  and  the  appeal  should 
therefore  have  been  made  within  fifteen  days  after  notice  of  the 
order.  (2  R.  S.  605,  §§  78,  79.)  The  time  for  appealing  ex- 
pired with  the  third  day  of  June,  and  the  appeal  was  not  taken 
until  the  21th  day  of  July.  It  was  then  too  late. 

But  we  are  referred  to  the  code  of  procedure,  which  allows 
two  years  for  taking  an  appeal ;  (§  279  ;)  and  gives  this  court 
jurisdiction  to  review  by  appeal  every  determination  "  hereafter 
made."  (§  11.)  And  as  the  order  in  question  was  made  on 
the  19th  of  May,  after  the  code  was  passed,  the  appellants  in- 
sist that  they  had  two  years  from  the  date  of  the  order  to  bring 
an  appeal.  Although  the  code  was  passed  on  the  12th  of  April, 
before  the  order  was  made,  it  did  not  take  effect,  excepting  a 
few  sections,  until  the  first  day  of  July  following.  (§  391.)  It 
did  not  begin  to  speak  until  that  day;  and  that  was  after  the 
order  had  been  made,  and  after  the  time  allowed  for  appeal- 
ing, by  the  old  law,  had  expired.  The  eleventh  section  says 
nothing  about  such  a  case  ;  it  only  speaks  of  cases  where  the 


ALBANY,  SEPTEMBER,  1848.  426 

The  Mayor,  &c.  of  New- York  v.  Schermerhorn. 

determination  was  made  on  or  after  the  first  of  July — the  time 
when  the  code  took  effect. 

Another  argument  remains  to  be  noticed.  The  279th 
section  o{  the  code,  which  gives  two  years  for  taking  an  ap- 
peal, only  applied,  as  it  was  originally  passed,  to  actions  com- 
menced after  the  code  took  effect.  (§  8.)  The  second  section 
of  the  supplemental  code  applies  the  279th  section,  among 
others,  to  future  proceedings  in  civil  suits  pending  when  the 
code  took  effect;  and  when  a  judgment,  decree  or  final  order 
in  such  a  suit  has  been  made  since  that  time,  or  shall  be  made 
hereafter,  it  may  be  reviewed  in  the  cases,  (§  282,)  within  the 
time,  (§  279,)  and  in  the  mode,  (§  271,)  prescribed  by  the  code. 
But  this  suit  was  not  pending  on  the  first  day  of  July,  when 
the  code  took  effect ;  it  had  been  terminated  by  a  final  decree 
before  that  time ;  and  there  have  been  no  proceedings  in  the 
suit  since  that  time  to  be  reviewed. 

We  are  reminded  by  the  counsel  for  the  appellants,  that  the 
third  subdivision  of  the  second  section  of  the  supplemental  code 
speaks  of  the  279th,  and  several  other  sections  of  the  code,  as 
applicable  to  the  review  of  judgments,  decrees  and  orders  "  from 
which  no  writ  of  error  or  appeal  shall  have  been  aiready  taken  ;'; 
and  it  is  inferred  from  the  words  quoted  that  there  may  be  an 
appeal  under  the  code  after  the  first  of  July,  from  a  judgment, 
decree  or  order  made  before  that  time.  But  there  is  an  incon- 
gruity between  those  words  and  the  general  clause  of  the 
section  ;  they  are  irreconcilable,  and  one  or  the  other  must  give 
way.  The  section  took  effect  at  the  same  time  with  the  code. 
(Supp.  Code,  §  18.)  The  general  clause  of  the  section  says 
that  certain  sections  of  the  code  shall  apply  to  future  proceed- 
ings, that  is,  proceedings  after  the  first  of  July,  in  suits  pending 
on  that  day ;  and  it  is  absurd  to  speak  of  reviewing  proceedings 
taken  after  the  first  of  July,  "  from  which  no  writ  of  error  or 
appeal  shall  have  been  already  taken ;"  that  is,  taken  before 
the  first  of  July.  As  the  general  clause  applies  to,  and  qualifies 
all  of  the  subdivisions  of  the  section,  it  is  more  important  than 
the  words  quoted  from  the  third  subdivision  :  and  those  words 
must,  I  think,  be  rejected.  After  they  are  out,  the  whole  pro- 

VOL.  I.  54 


426  CASES  IN  THE  COURT  OF  APPEALS. 

Spaulding  t>.  Kingsland. 

vision  will  be  congruous ;  and  the  third  subdivision  will  still 
have  effect,  though  its  influence  will  not  be  so  wide  as  that 
which  the  appellants  seek  to  give  to  it. 

On  the  construction  which  I  have  given  to  these  statutes, 
when  the  matter  was  decided  before  the  first  of  July,  the  right 
to  a  review,  the  time  within  which  the  proceeding  must  be 
commenced,  and  the  form  of  prosecuting  it,  from  beginning  to 
end,  all  depend  upon  the  old  law.  The  code  says  nothing  on 
the  subject.  But  when  the  matter  is  decided  after  the  first  of 
July,  whether  the  suit  was  commenced  before  or  after  that  day, 
the  right  to  appeal,  the  time  within  which  the  appeal  must  be 
taken,  and  the  mode  of  procedure,  all  depend  upon  the  code. 
A  different  construction  might  give  an  appeal  after  the  first  of 
July,  in  a  case  where  the  right  of  appeal  had  been  lost  by  the 
lapse  of  time  before  the  code  took  effect,  which  could  not  have 
been  intended  by  the  framers  of  the  code. 

The  code  has  nothing  to  do  with  this  case ;  and  as  the  time 
for  appealing  had  expired  before  the  appeal  was  taken,  I  am 
of  opinion  that  the  motion  should  be  granted. 

Motion  granted. 


and  others,  respondents. 

426  An  order  was  made  by  the  chancellor  on  the  23d  of  June,  1848,  denying  a  motion 

irf>r        to  vacate  a  decree  and  for  leave  to  take  proofs.     An  appeal  was  brought  in 

1343       the  mode  prescribed  lnj  the  code  of  procedure,  on  the  llth  of  July,  1848  ;  held,  that 

such  appeal  should  have  been  made  in  the  form  prescribed  by  the  statute  and  rules 

in  force  before  the  code  of  procedure  took  effect. 

Held  further,  that  the  code  of  procedure  gives  no  new  right  of  appeal  from  an  order 
made  before  it  took  effect,  and  that  the  chancellor's  order  in  question,  being  upon 
a  matter  addressed  to  his  discretion,  was  not  the  subject  of  appeal,  according  to 
the  previous  rule  in  such  casea. 

S.  Stevens  fy  N.  Hill,  Jr.  for  the  respondents,  moved  to  dis- 
miss the  appeal.  The  chancellor,  on  the  23d  of  June  last,  de- 
nied the  appellant's  motion  to  vacate  a  decree  which  had  been 


ALBANY,  SEPTEMBER,  1848.  427 

Spaulding  v.  Kingsland. 

entered  against  him  by  default,  and  a  further  motion  (if  the 
first  should  be  granted)  to  open  the  order  closing  the  proofs. 
Notice  of  the  order  denying  the  motions  was  served  on  the  29th 
of  June, -and  the  appeal  was  taken  on  the  llth  of  July.  The 
appeal  was  taken  in  the  mode  prescribed  by  the  code  of  pro- 
cedure, and  not  in  accordance  with  the  old  law. 

A.  Taber,  for  the  appellant. 

BRONSON,  J.  The  271st  section  of  the  code  of  procedure, 
which  abolishes  the  old,  and  gives  a  new  mode  of  review,  did 
not  at  the  first  apply  to  any  adjudication  in  actions  com- 
menced before  the  first  of  July,  when  the  code  took  effect. 
(§§  8,  391.)  But  it  was  subsequently  applied  to  proceedings  af- 
ter the  first  of  July  in  suits  which  were  pending  before  and  on 
that  day.  (Supp.  Code,  §§  2.  18.)  The  suit  in  which  this 
order  was  made  was  not  pending  on  the  first  day  of  July ;  it 
had  been  disposed  of  by  a  final  decree  before  that  time.  And 
further,  there  has  been  no  proceeding  in  the  suit  since  the  first 
of  July:  the  order  appealed  from  was  made  before  that  day. 
The  appeal  should  have  been  in  the  form  prescribed  by  the  old 
law,  the  code  having  nothing  to  do  with  the  case.  (Mayor  of 
New-  York  v.  Schermerhorn,  ante,  p.  423.) 

There  is  a  further,  and  equally  fatal  objection,  that  the 
order  was  not  one  from  which  an  appeal  would  lie.  It  was  a 
question  of  practice  addressed  to  the  discretion  of  the  chancel- 
lor. (Fort  v.  Bard,  ante,  p.  43.)  The  right  to  appeal,  as  well 
as  the  mode  of  proceeding,  depended  on  the  old  law. 

Appeal  dismissed. 


428  CASES  IN  THE  COURT  OF  APPEALS. 


Butler  v.  Miller. 


BUTLER  and  VOSBURGH  vs.  MILLER. 

When  an  appeal  under  the  judiciary  act  of  December,  1847,  (Stai.  1847,  p.  639,) 
was  brought  prior  to  the  1st  day  of  July,  1848,  from  a  decision  of  the  supreme  court 
granting  a  new  trial  on  a  bill  of  exceptions ;  held,  that  the  jurisdiction  of  the  court 
to  hear  and  determine  such  appeal  was  not  taken  away  by  the  code  of  procedure. 

Whether  appeals  may  still  be  brought  from  the  decisions  of  the  supreme  court  on 
bills  of  exceptions  in  cases  where  the  action  was  pending  prior  to  the  first  day  of 
July,  1848,  qucre. 

It  seems,  that  the  code  does  not  take  away  a  right  of  appeal  which  had  attached  be- 
fore it  went  into  operation. 

APPEAL  by  the  plaintiffs,  under  the  fifth  section  of  the  judi- 
ciary act  of  December,  1847,  (Stat.  1847,  p.  639,)  from  a  de- 
cision of  the  supreme  court  granting  a  new  trial  to  the  defen- 
dant upon  a  bill  of  exceptions.  The  appeal  was  taken  prior  to 
the  first  dsy  of  July  last,  when  the  code  of  procedure  took  effect. 
(Slat.  1848,  p.  497.) 

K.  Miller,  for  the  defendant,  said  the  court  could  not  hear  the 
appeal,  as  the  provisions  of  the  judiciary  act  on  this  subject  were 
repealed  by  the  388th  section  of  the  code.  He  cited  also  §§  271, 
282,  11. 

John  H.  Reynolds,  for  the  plaintiffs,  cited  §  10  of  the  code. 

ORONSON,  J.  The  code  of  procedure  specifies  the  cases  in 
which  there  may  be  an  appeal  to  this  court,  without  including 
the  appeal  on  a  bill  of  exceptions  provided  for  by  the  judiciary 
act  of  December,  1847,  (i§282,  11.)  and  abolishes  writs  of  error 
and  appeals  as  they  have  heretofore  existed.  (§  271.)  And 
further,  all  statutory  provisions  inconsistent  with  the  code  arc 
repealed.  (§  388.)  But  originally  these  sections  only  applied  to 
actions  commenced  on  or  after  the  first  day  of  July  last)  (§§  8,391, 
10  ;)  and  the  supplemental  code  has  only  applied  sections  271  and 
282  to  future  proceedings  in  suits  pending  on  that  day.  (§  2.) 
Tliis  appeal  was  taken  prior  to  the  first  day  of  July  last,  and 


ALBANY,  SEPTEMBER,  1848.  429 

Brown  v.  Fargo. 

we  still  have  jurisdiction  to  hear  it.  (Code,  §  10.)  The  act  of 
December,  1847,  when  applied  to  appeals  depending  on  the  first 
of  July,  is  not  so  inconsistent  with  any  thing  in  the  code  as  to 
come  within  the  repealing  section.  (388.)  The  code-makers 
did  not  intend  to  take  away  any  right  which  had  already  at- 
tached under  the  old  law  ;  but  only  to  change  the  law  for  the 
future. 

Whether  appeals  may  still  be  brought  from  the  decisions  of 
the  supreme  court  on  bills  of  exceptions,  in  cases  where  the  ac- 
tion was  pending  prior  to  the  first  day  of  July,  is  a  question 
which  need  not  now  be  decided. 

We  are  of  opinion  that  this  appeal,  and  the  others  which 
have  been  mentioned  as  depending  on  the  same  question,  may 
be  prosecuted  in  the  same  manner  as  though  the  code  had  not 

been  passed. 

Ordered  accordingly. 


BROWN  vs.  FARGO. 

The  judiciary  act  of  December,  1847,  (Slot,  of  1847,  p.  639,)  authorizing  appeals 
from  decisions  of  the  supreme  court  on  bills  of  exceptions,  applies  only  to  cases 
where  the  supreme  court  grants  or  refuses  a  new  trial  before  any  judgment  in  the 
cause ;  and  not  to  cases  where  that  court  reverses  or  affirms  the  judgment  of  a 
subordinate  court. 

J.  K.  Porter  moved  to  dismiss  the  appeal.  In  May,  1848, 
the  supreme  court,  on  writ  of  error,  reversed  the  judgment  of 
the  Chenango  common  pleas,  and  ordered  a  venire  de  novo  to 
issue.  From  that  decision  the  defendant  in"  error  appealed  to 
this  court  before  the  first  of  July,  1848,  under  the  judiciary  act 
of  December,  1847. 

N.  Hill,  Jr.  for  the  respondent. 

PER  CURIAM.  The  statute  under  which  this  appeal  is 
brought  does  not  authorize  an  appeal  in  such  a  case.  The 

remedy  was  by  writ  of  error. 

Motion  granted. 


430  CASES  IN  THE  COURT  OF  APPEALS. 


Schermerhorn  v.  Anderson. 


SCHERMERHORN,  appellant,  vs.  ANDERSON  and  others, 
respondents. 

Where  an  appeal  is  brought  under  the  code  of  procedure  from  two  orders,  an  under- 
taking in  the  sum  of  $850  is  not  sufficient,  although  one  of  the  orders  embraced 
in  the  appeal  is  made  at  a  special  term  of  the  supreme  court,  and  therefore  is  not 
appealable  to  this  court. 

The  appellant  allowed  to  amend  his  undertaking  on  terms. 

L.  Livingston  moved  to  dismiss  the  appeal.  On  the  1st  of 
April,  1848,  a  decree  was  made  by  the  supreme  court  at  special 
term,  dismissing1  the  bill  of  complaint.  An  application  was 
made  to  the  general  term  for  a  rehearing,  which  was  denied  by 
order  pronounced  on  the  8th  of  May,  but  not  entered  and  served 
until  the  5th  of  July,  1848.  On  the  14th  of  July  this  appeal 
was  taken,  and  was  intended  to  conform  to  the  provisions  of 
the  code  of  procedure,  regulating  the  manner  of  bringing  ap- 
peals. The  notice  of  appeal  stated  that  such  appeal  was  taken 
from  the  decree  of  the  1st  of  April  and  the  order  of  the  8th  of 
May.  The  undertaking  also  recited  both  these  orders,  and  that 
the  appeal  was  from  the  "  said  decree  and  order,"  and  it  bound 
the  appellant  and  his  sureties  to  pay  all  costs  and  damages  that 
might  be  awarded  on  the  said  appeal,  not  exceeding1  two  hun- 
dred and  fifty  dollars. 

A.  H.  Dana,  for  the  respondents. 

PER  CURIAM.  The  motion  must  be  granted  absolutely,  so 
far  as  the  appeal  relates  to  the  decree  made  at  the  special  term, 
on  the  ground  that  no  appeal  lies  from  the  special  term.  The 
appeal  being  from  two  orders,  the  undertaking  is  not  large 
enough,  and  the  motion  must  therefore  be  granted  also  as  to 
the  appeal  from  the  order  of  the  general  term,  unless  the  appel- 
lant amend  the  undertaking  by  striking  out  so  much  as  relates 
to  the  order  of  the  special  term,  and  pay  the  costs  of  the  appeal 
from  that  order,  and  of  this  motion. 

Ordered  accordingly. 


ALBANY,  SEPTEMBER,  1848.  43] 


Slade  v.  Warren. 


SLADE,  appellant,  vs.  WARREN,  respondent. 

A  DEFAULT  was  regularly  taken  at  the  last  term  of  the  court 
at  Rochester  by  the  counsel  for  the  respondent  who  was  in  at- 
tendance. The  appellant  moved  at  this  term  to  have  his  de- 
fault opened  on  affidavits  showing  an  excuse.  Mction  granted, 
on  payment  of  the  taxable  costs  of  the^term  and  of  opposing  the 
motion,  and  a  counsel  fee  of  fifty  dollars  for  attending  prepared 
to  argue  the  cause. 


CASES 

ARGUED    AND    DETERMINED 

IN  THE 

COURT  OF  APPEALS 

OP  THE 

STATE    OF   NEW-YORK, 

IN  NOVEMBER  TERM,  1848. 


433 

15  4138 

16  4447 
d36  "  83 

47  4215 

60  «412 

h63  8500 

THE  FARMERS'  LOAN  AND  TRUST  COMPANY,  appellants,  vs>     67  414S 

93  *249 

HIRAM  WAL WORTH,  clerk  in  chancery,  respondent.  99         1321 

113         4462 

Where  moneys  deposited  in  the  court  of  chancery,  in  a  suit  for  the  partition  of     •*  ^  r,        £~  * 
lands,  have  been  invested  by  the  clerk  upon  bond  and  mortgage  executed  to  him 
in  his  official  character,  such  clerk  has  no  power  to  discharge  the  mortgage  with- 
out the  order  of  the  court. 

And  it  seems,  that  where  the  clerk  executes  such  a  discharge  without  actual  pay- 
ment, and  without  the  order  of  the  court,  it  is  void  even  as  against  bonafide  pur- 
chasers of  the  property  encumbered  by  the  mortgage. 

But  the  unauthorized  act  of  the  clerk,  in  executing  such  discharge,  may  be  ratified 
by  the  owners  of  the  fund  secured  by  the  mortgage. 

A  ratification  of  part  of  an  unauthorized  transaction  of  an  agent,  or  one  who  assumes 
to  act  as  such,  is  a  confirmation  of  the  whole. 

One  of  the  clerks  in  chancery  loaned  upon  bond  and  mortgage  the  sum  of  $29,000, 
which  had  been  paid  into  that  court  to  secure  a  widow's  dower,  in  pursuance  of  a 
decree  in  partition.  Afterwards,  the  borrowers  executed  to  the  clerk  another  bond 
for  the  same  sum,  and  another  mortgage  upon  different  property.  These  securi- 
ties were  intended  as  a  substitute  for  the  first  bond  and  mortgage,  and  were  so 
received  by  the  clerk,  who,  thereupon,  without  any  direction  of  the  court,  execu- 
ted a  satisfaction  of  the  first  mortgage,  which  was  entered  of  record.  The  owners 
of  the  fund,  (after  the  death  of  the  widow,)  with  notice  of  all  the  circumstances, 

VOL.  I.  55 


434     CASES  IN  THE  COURT  OF  APPEALS. 

The  Farmer*'  Loan  and  Trust  Co.  v.  Walworth. 

foreclosed  the  second  mortgage,  in  the  name  of  the  clerk,  and  had  the  property  sold 
Held,  that  although  the  discharge  of  the  first  mortgage  was  void,  and  might  have 
been  treated  as  a  nullity,  yet  the  election  of  the  owners  of  the  fund  to  proceed  upon 
the  substituted  security,  was  a  ratification  of  the  acts  of  the  clerk,  and  therefore, 
that  a  bill  filed  to  foreclose  the  first  mortgage,  for  the  purpose  of  collecting 
the  residue  of  the  money  not  realized  by  the  first  foreclosure,  could  not  be 
sustained. 

It  seems,  that  if  the  owners  of  the  fund  had  elected  to  proceed  upon  the  first  mort- 
gage, the  appellants,  who  were  bona  fide  purchasers  of  the  property  covered 
thereby,  would  have  been  entitled  to  the  second  mortgage  for  their  indemnity. 

The  act  of  a  public  officer  exceeding  the  authority  conferred  on  him  by  law  may 
be  adopted  by  the  party  for  whose  benefit  it  is  done.  Per  BRONSON,  J. 

The  equitable  doctrine  in  regard  to  marshalling  securities  is  applicable  only  where 
one  party  has  a  lien  upon  or  interest  in  two  funds,  with  a  right  to  resort  to  either 
or  both,  and  another  party  has  a  lien  upon  or  interest  in  only  one  of  those  funds. 
Per  GARDINER,  J. 

APPEAL  from  chancery.  The  bill  in  this  cause  was  filed 
against  Samuel  Jones,  John  L.  Graham,  and  The  Farmers' 
Loan  arid  Trust  Company,  to  foreclose  a  mortgage  bearing 
date  the  4th  day  of  April,  1835,  executed  by  Jones  and  Graham 
to  John  Walworth,  as  clerk  in  chancery  for  the  first  circuit. 
The  Farmers'  Loan  and  Trust  Company  defended  (he  bill, 
and  the  case,  upon  pleadings  and  proofs,  was  in  substance  as 
follows. 

On  the  said  4th  day  of  April,  1835,  John  Walworth,  as  such 
clerk,  loaned  to  Jones  and  Graham  the  sum  of  $29,000,  paya- 
ble on  the  4th  of  April,  1838,  with  annual  interest ;  to  secure 
which  they  executed  their  bond  and  the  mortgage  in  question, 
covering  eighty-eight  lots  in  the  twelfth  ward  of  the  city  of 
New- York.  The  money  so  loaned  had  been  previously  paid 
into  the  court  of  chancery,  in  pursuance  of  a  decree  of  that 
court  made  in  a  suit  for  the  partition  of  the  real  estate  of  Henry 
A.  Coster,  deceased  ;  the  widow  of  said  Coster  (Mrs.  Hosack) 
being  entitled  to  the  interest  during  her  life,  as  a  part  of  her 
dower,  and  his  heirs  and  their  assigns  being  entitled  to  the 
money,  after  her  decease.  She  died  in  July,  1841,  and  this 
suit  was  instituted  by  the  persons  who  became  the  owners  of 
the  fund  upon  her  decease,  under  the  direction  of  the  court  of 


SYRACUSE,  NOVEMBER,  1848.  435 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworth. 

chancery,  in  the  name  of  Hiram  Walworth,  the  successor  in 
office  of  John  Walworth. 

On  the  31st  day  of  December,  1836,  Jones  and  Graham,  the 
mortgagors,  conveyed  the  premises  covered  by  the  mortgage, 
and  other  lands,  to  The  Farmers'  Loan  and  Trust  Company, 
for  the  consideration  of  $200,000,  payable  in  certain  certificates 
to  be  issued  by  that  company,  of  which  $125,000  was  paid  at 
the  time,  and  $75,000  was  to  be  retained  until  Jones  and  Gra- 
ham should  pay  off  and  discharge  the  mortgage  above  men- 
tioned, and  such  other  liens  as  encumbered  the  premises  con- 
veyed. This  conveyance  was  recorded  April  6,  1837.  On  the 
12th  day  of  April,  1837,  Jones  and  Graham  executed  to  the  said 
clerk  a  new  bond  for  the  same  sum  of  $29,000,  and  a  new  mort- 
gage upon  other  real  estate  situated  in  a  different  part  of  the 
city.  These  were  intended  as  a  substitute  for  the  previous  bond 
and  mortgage,  and  were  so  accepted  by  the  clerk,  who  there- 
upon executed  a  satisfaction  of  the  first  mortgage,  which  was 
duly  entered  of  record.  A  certificate  of  such  satisfaction  was 
exhibited  to  The  Farmers'  Loan  and  Trust  Company,  and  the 
company  afterwards  issued  to  Jones  and  Graham  certificates 
for  the  remaining  sum  of  $75,000.  The  last  mortgage  was 
substituted  for  the  first,  and  the  first  one  satisfied  by  the  clerk, 
without  the  direction  or  authority  of  the  court  of  chancery  ;  but 
these  acts  were  done  in  good  faith,  and  with  no  improper  de- 
sign on  the  part  of  any  of  those  concerned  in  them.  The 
unencumbered  property  included  in  the  last  mortgage  was  esti- 
mated, by  competent  appraisers  to  be  of  sufficient  value  to  ren- 
der the  debt  amply  secure  ;  and  the  evidence  tended  to  show 
that,  at  the  sale  thereof  in  1842,  (hereafter  mentioned,)  it  pro- 
duced as  large  a  sum  as  the  property  embraced  in  the  first 
mortgage  could  have  been  sold  for.  The  property  embraced 
in  both  mortgages  had  then  greatly  depreciated  since  the  mort- 
gages were  respectively  executed. 

On  the  2d  of  May,  1842,  (Mrs.  Hosack  having  died,)  the  com- 
plainants in  interest  in  the  present  suit,  the  owners  of  the  fund 
loaned  to  Jones  and  Graham,  filed  their  bill  in  the  name  of  the 
clerk  to  foreclose  the  last  mortgage,  and  on  the  5th  of  October, 


436     CASES  IN  THE  COURT  OF  APPEALS. 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworth. 

1842,  obtained  the  usual  decree  of  foreclosure,  and  for  the  sale 
of  the  premises.  The  Farmers'  Loan  and  Trust  Company 
were  not  made  parties  to  that  foreclosure.  Under  that  decree 
the  premises  covered  by  the  last  mortgage  were  sold  for  the 
sum  of  $21,960,  on  the  7th  day  of  November,  1842,  leaving  a 
deficiency  of  $15,578,49,  which  amount  still  remains  due  ;  and 
for  the  purpose  of  making  that  sum,  the  present  suit  was  insti- 
tuted to  foreclose  the  first  mortgage. 

At  the  time  the  previous  suit  was  instituted  to  foreclose  the 
last  mortgage,  it  was  known  to  the  solicitor  of  the  complainants 
in  interest  therein,  that  the  last  mortgage  had  been  substituted 
for  the  first,  and  that  the  first  one  had  been  discharged  by  the 
clerk ;  but  it  being  also  known  to  him  that  the  clerk  had  exe- 
cuted the  discharge  without  actual  payment,  and  without  the 
direction  of  the  court,  it  was  his  intention  to  fall  back  upon  the 
first  mortgage,  in  case  the  foreclosure  of  the  last  did  not  pro- 
duce enough  to  satisfy  the  debt.  Jones  and  Graham,  the  mort- 
gagors, were  in  affluent  circumstances  when  the  mortgages 
were  respectively  executed,  but  at  the  time  of  the  foreclosure 
suit  upon  the  last  mortgage,  they  had  become  insolvent,  and 
that  fact  was  also  known  to  the  solicitor.  The  same  solicitor 
also  testified  in  the  present  suit,  that  from  the  fact  of  the  insol- 
vency of  the  mortgagors,  he  took  it  for  granted  at  the  time  he 
instituted  the  suit  to  foreclose  the  last  mortgage,  that  they 
had  parted  with  the  property  included  in  the  first  mortgage, 
but  who  had  acquired  the  title  to  the  same,  he  had  never 
inquired. 

The  assistant  vice  chancellor  of  the  first  circuit  made  a  de- 
cree, declaring  that  the  discharge  executed  by  the  clerk,  of  the 
first  mortgage,  was  void,  that  such  mortgage  was  still  in  force, 
and  granting  the  prayer  of  the  bill  for  foreclosure  and  a  sale  of 
the  premises.  The  Farmers'  Loan  and  Trust  Company  appealed 
to  the  chancellor,  and  the  cause  then  became  vested  in  the  su- 
preme court  organized  under  the  new  constitution,  where  the 
decree  was  affirmed.  The  Farmers'  Loan  and  Trust  Company 
appealed  to  this  court. 


SYRACUSE,  NOVEMBER,  1848.  437 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworth. 

Wm.  Curtis  Noyes,  for  the  appellants.  I.  The  clerk  in 
chancery  was  the  trustee  or  agent  appointed  by  statute  to  invest, 
manage,  control  and  collect  the  fund  loaned  to  Jones  and  Gra- 
ham upon  their  bond  and  mortgage  of  April  4th,  1835.  (2  R.  S. 
169,  $§  8,  9  ;  1  id.  119,  §  24,  sub.  4 ;  2  id.  170,  §  11 ;  id.  171, 
*§  18,  21,  22 ;  id.  172,  §§  24,  25.)  And  having  authority  to  re- 
ceive payment,  he  had,  as  a  necessary  consequence,  power  to 
acknowledge  satisfaction. 

II.  The  70th  section  of  the  act  concerning  the  partition  of 
lands,  (2  R.  S.  328,  §  70,)  does  not  apply  to  the  partition  of 
lands  in  the  court  of  chancery,  for  although  a  like  power  is  con- 
ferred upon  that  court,  yet  the  80th  section  does  not  declare  all 
the  provisions  of  the  act  applicable  to  that  court,  and  the  lan- 
guage of  the  70th  section  does  not,  in  terms,  embrace  the  regis- 
ter in  chancery.     Besides,  the  statute  was  not  necessary  to 
confer  jurisdiction,  in  partition,  upon  the  court  of  chancery. 
This  has  been  for  a  long  period  an  acknowledged  head  of 
equity  jurisdiction,  independent  of  any  statute.     (Allnat  on 
Partition,  77,  83.) 

III.  In  any  event,  the  only  defect  in  the  discharge  of  the 
mortgage,  was  the  want  of  the  order  of  the  court  authorizing 
it.     And  on  this  point  it  is  submitted  on  behalf  of  the  appellants, 
that  there  was  nothing,  either  in  the  law  or  the  facts  of  the  case, 
to  charge  them  with  notice  of  the  omission.     On  the  contrary, 
they  acted  with  entire  good  faith,  relying  upon  the  accuracy 
and  integrity  of  a  public  officer ;  and  they  had  a  right  to  be- 
lieve, as  they  undoubtedly  did  believe,  that  the  clerk  had  au- 
thority to  perform  the  act  upon  which  they  relied  ;  and  having 
advanced  a  valuable  consideration,  they  are  purchasers  in  good 
faith,  and  as  such  are  entitled  to  protection.     (1  Story's  Eq. 
§  376 ;  1  Y.  3-  Coll.  328 ;  1  Story's  Eq.  §  400,  a  ;  1  Hare's 
Rep.  43  ;  &  C.  1  Phil.  244  ;  Frazer  v.  Western,  1  Barb.  Ch. 
Rep.  220.) 

IV.  The  second  mortgage  of  Jones  and  Graham  was  taken 
by  the  clerk  as  a  substitute  for  the  first  mortgage,  and  the  par- 
ties in  interest  having,  with  a  knowledge  of  all  the  circumstan- 
ces, foreclosed  and  received  the  avails  of  the  second  mortgage, 


438  CASES  IN  THE  COURT  OF  APPEALS. 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworth. 

they  have  thereby  ratified  and  confirmed  the  act  of  the  clerk  in 
taking  the  substituted  security,  and  are  bound  by  it*  with  the 
same  effect  as  though  they  had  originally  authorized  it.  And 
having  thus  ratified  and  adopted  the  act  of  their  agent  and 
trustee  in  part,  they  are  not  at  liberty  to  reject  another  part  of 
the  act  performed  by  him,  although  it  may  have  been  to  their 
prejudice.  (Liv.  on  Agency,  44,  394,  396  ;  Story  on  Agency, 
§§  244,  250,  253  ;  Frothingham  v.  Haley,  3  Mass.  70 ;  Wil- 
son v.  Timmin,  6  Man.  fy  Gr.  236 ;  Foster  v.  Bates,  7  Lon. 
Jur.  1093  ;  Codwise  v.  Hacker,  1  Caines,  527  ;  Cairnes  v. 
Bleecker,  12  John.  R.  300 ;  Vianna  v.  Barclay,  3  Cowen,  281 ; 
Bell  v.  Cunningham,  3  Pet.  R.  81  ;  1  Am.  Lead.  Cas.  421 ;  West 
Boynton  Man.  Co.  v.  Searle,  15  Pick.  225  ;  Gaincs  v.  Acre,  Mi- 
nor's (Ala.}  R.  141 ;  Hampshire  \.  Franklin,  16  Mass.  76  ;  Zi 
no  v.  Williams,  9  Lou.  R.  58 ;  Planters'  Bank  v.  Sharp,  4 
Smedes  <£•  Marsh.  75 ;  Church  v.  Sterling,  16  Conn.  R.  389; 
Burrill  v.  The  Nahant  Bank,  2  Mete.  163 ;  Lawrence  v.  Tay- 
lor,  5  Hill,  107.)  This  adoption  amounts  to  an  estoppel. 
(Amer.  Lead.  Cases,  420  ;  Blair  v.  Pathkiller's  Lessee,  3 
Yerg.  407 ;  Ruggles  v.  Washington  Co.  3  Miss.  R.  495 ; 
Daggett  v.  Emerson,  3  Story's  R.  700  ;  Slate  v.  Perry, 
Wrights  Ohio  R.  662;  Rogers  v.  Knceland,  13  Wemf.  114; 
Viggers  v.  PtAre,  8  Clark  $•  jFm.  526.)  And  the  adoption  ex- 
tends to  the  entire  act  of  the  agent  or  person  professing  to  act 
as  such.  (Amcr.  Lead.  Cases,  421  ;  St^ry  on  Agency,  §§  250, 
244  ;  Cushman  v.  Lokcr,  2  Mass.  R.  lub  ;  Wilson  v.  Poult cr, 
2  Strange,  859  ;  Newell  v.  Hnrlbut,  2  Verm.  R.  351.)  This 
view  of  the  case  is  also  sustained  by  the  analogy  of  the  law  in 
relation  to  infants.  (2  Grccnl.  Ev.  2d  ed.  §  307  ;  Goodscll  v. 
Myers,  3  Wend.  479  ;  Boston  Bank  v.  Chamberlain,  15  Mass. 
220  ;  Lawson  v.  Lovejoy,  8  Grccnl.  R.  405  ;  Delano  v.  Blake, 
11  TFenrf.  #.  85;  //i/fyer  v.  Bennett,  3  Udw>.  CA.  #.  222; 
Fontclet  v.  Murrill,  9  Low.  7?.  305 ;  Lowcry  v.  Blake,  1  Z>a- 
na's  7?.  46.)  So  by  the  law  in  relation  to  the  unauthorized 
acts  of  trustees.  (2  Stonfs  Eq.  §§  12,  62  ;  Murray  v.  Ballon, 
1  .7o/m.  CA.  #.  581  ;  Murray  v.  Lylburn,  2  id.  441 ;  .HJ/f  on 
Trustees,  525,  338.)  So  upon  the  doctrine  of  election  as  appli- 


SYRACUSE,  NOVEMBER,  1848.  439 

The  Farmers'  Loan  and  Trust  Co.  r.  Walworth. 

cable  to  all  the  classes  above  enumerated.  (Bac.  Abr.  tit. 
Election  ;  Co.  Lit.  146 ;  Lawrence  v.  Ocean  Ins.  Co.  11  John. 
241;  2  Story's  ^.§1075.) 

V.  The  doctrine  in  regard  to  marshalling  assets  has  nothing 
to  do  with  this  case.  That  doctrine  is  only  applied  in  cases 
where  a  party  has  a  lien  upon,  or  an  interest  in,  two  or  more 
funds  for  a  debt,  and  another  party  has  a  lien  upon,  or  an  in- 
terest in,  only  one  of  the  same  funds  for  another  debt.  In  this 
case  the  clerk  had  but  one  fund,  viz :  one  of  the  bonds  and 
mortgages,  as  a  security  for  the  $29,000,  inasmuch  as  the  con- 
dition of  giving  the  last  was,  that  the  first  should  be  satisfied. 
They  never  existed  together.  To  hold  that  they  did  exist  to- 
gether, would  be  in  direct  contravention  of  the  agreement  upon 
which  the  last  bond  and  mortgage  were  given,  and  would  be  a 
fraud  upon  the  appellants,  the  grantees  of  Jones  and  Graham. 
(1  Story's  Eq.  §  633 ;  Chit,  on  Cont.  Spring/,  ed.  1842,  p.  622, 
783  ;  Domat,  B.  1,  tit.  1,  §  1,  sub.  5  ;  id.  §  3,  sub.  1  ;  1  Evans' 
Pothier,  p.  22.) 

Wm.  M.  Evarts,  for  the  respondent.  I.  The  validity  of 
the  mortgage  was  not  discharged  or  impaired  in  any  manner 
by  the  act  of  John  Walworth,  in  executing  and  delivering  the 
paper  purporting  to  be  a  certificate  of  the  payment  of  said 
mortgage.  (1.)  No  clerk  of  the  court  of  chancery,  virtute  officii, 
or  by  statute,  had  power  of  his  own  motion,  to  discharge,  vary, 
or  impair  the  securities  for  moneys  remaining  in  such  court,  or 
in  any  manner  to  deal  with  such  securities  or  moneys,  except 
under  the  direction  of  the  court  itself.  (2  R.  S.  169,  170,  171 ; 
Chan.  Rules,  127, 128,  180.)  (2.)  The  provisions  of  the  statute 
respecting  suits  in  partition  confer  but  very  limited  powers,  and 
impose  very  limited  duties  upon  clerks  of  courts  into  which 
moneys  or  securities  under  proceedings  in  such  suits  may  be 
brought,  in  respect  of  such  moneys  or  securities.  These  pro- 
visions clearly  exclude  any  inference  of  such  authority  to  the 
clerk  as  was  exercised  in  this  case.  (2  R.  S.  325,  329,  §§  50, 
54,  66,  68,  69.)  (3.)  The  statute  respecting  suits  in  partition, 
distinctly  provides  in  respect  of  investments  of  moneys  brought 


440  CASES  IN  THE  COURT  OF  APPEALS. 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworth. 

into  court  in  such  suits,  that  "  no  such  security,  bond,  mortgage, 
or  other  evidence  of  such  investment  shall  be  discharged,  trans- 
ferred or  impaired,  by  any  act  of  the  clerk,  without  the  order 
of  the  court,  entered  in  the  minutes  thereof."  (2  R.  S.  328, 
§  70.)  This  section  of  the  statute  is  not  merely  prohibitory  of 
certain  acts  of  the  clerk,  but  renders  them,  if  committed  or  at- 
tempted, entirely  inoperative  upon  the  security,  which  survives 
unaffected  by  such  acts.  But  if  the  provisions  of  the  statute 
are  merely  prohibitory  on  the  clerk,  then  his  acts  in  contraven- 
tion of  its  absolute  terms  are  equally  void.  (Hallctt  v.  Novion, 
14  John.  R.  273,  290 ;  Illinois  v.  Dclafield,  8  Paige,  527 ; 
Rex  v.  Justices,  $*c.  7  Barn.  <$f  Cross.  12 ;  Jackson  v.  Andrews, 
7  Wend.  152.) 

II.  The  defendants,  Jones  and  Graham,  could  not  oppose 
any  equity  to  the  foreclosure  of  the  mortgage  in  suit,  nor  insist 
upon  the  validity  of  the  pretended  satisfaction  piece.     They 
were  active  parties  to  the  illegal  acts  of  the  clerk,  and  besides, 
being  personally  bound  for  the  debt,  were  indifferent  as  to  what 
property  it  is  satisfied  out  of. 

III.  The  defendants,  The  Farmers'  Loan  and  Trust  Com 
pany,  stand  in  no  better  condition  in  respect  of  the  complain- 
ants' equity,  than  Messrs.  Jones  and  Graham.     (1.)  They  are 
subsequent  mortgagees  with  actual  notice  of  this  mortgage,  and 
an  express  acknowledgment  of  its  superior  lien.     (2.)  The  first 
parcel  of  their  bonds  was  advanced  to  Jones  and  Graham, 
in  reliance  upon  the  covenant  of  the  latter,  that  out  of  them  or 
their  proceeds,  they,  (Jones  and  Graham,)  would  pay  off  this 
and  other  incumbrances.     The  second  parcel  was  advanced 
upon  the  representation  of  Jones  and  Graham,  that  they  had 
done  so.     For  this  breach  of  covenant  and  false  representation, 
they  are  confined  to  a  personal  remedy  against  Jones  and  Gra- 
ham.  (3.)  The  Farmers1  Loan  and  Trust  Company  were  affect- 
ed with  notice  of  the  peculiar  character  of  this  security,  and  if 
they  have  acted  upon  insufficient  evidence  of  its  payment  or 
satisfaction,  they  must  bear  the  consequences  of  their  own  error. 
(Sugd.  on  Vend.  ch.  17  ;  1  Story's  Eq.  §§  399,  400  ;  Jackson  v. 
CadwclL  1  Cowen,  622 ;  Hcrrison  v.  Fly,  7  Paige,  421 ;  Grif- 


SYRACUSE.  NOVEMBER,  1848.  44) 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworth. 

feth  v.  Griffeth,  9  id.  317 ;  Greene  v.  Sluyter,  4  John.  Ch.  JR.  46 ; 
Pitney  v.  Leonard,  1  Paige,  461 ;  5  Price,  306  ;  7  Conn.  333.) 

IV.  The  parties  in  interest,  the  owners  of  the  money  in  court 
in  the  partition  suit,  (the  actual  complainants  in  this  suit,)  had 
not  in  any  manner  waived  or  impaired  their  right  to  enforce 
the  mortgage  foreclosed  in  this  suit.     (1.)  John  Walworth  never 
acted  by  any  agency  or  authority  derived  from  them,  and  they 
are  not  bound  by  his  acts,  admissions  or  acquiescence.     He 
never  was  their  trustee,  and  never  had  the  legal  title  or  posses- 
sion of  the  fund  in  himself.     (2.)  Since  (by  permission  of  the 
court)  they  have  resumed  the  control  of  their  property  which 
had  been  confided  to  the  court  of  chancery,  they  have  sought, 
to  realize  the  same  from  the  securities  which  were  delivered  to 
them  by  the  court  as  the  representatives  of  their  fund,  in  the 
order  which  the  settled  doctrines  of  this  court  sanction.     (1  Sto- 
ry's Eq.  §§  633,  637,  and  notes,  §  499.)     (3.)  The  second  mort- 
gage, an  undoubted  security  as  against  Jones  and  Graham,  was 
on  property  in  which  no  other  parties  were  interested,  and  this 
they  first  exhausted,  and  have  thereby  relieved  the  property  on 
which  The  Farmers'  Loan  and  Trust  Company  had  a  subse- 
quent lien,  from  their  own  prior  lien,  to  the  extent  of  the  value 
of  their  second  security.     And  the  master's  sale  is  conclusive 
of  the  value  of  that  security. 

V.  The  case  at  bar  is  sui  generis,  and  the  analogies  claimed 
by  the  appellants'  counsel  have  no  application.    (1.)  No  case  for 
election,  nor  any  juncture  for  entire  repudiation  or  entire  rati- 
fication, was  ever  presented  to   the  parties  in  interest.     They 
never  had  an  opportunity  of  free  choice,  or  of  fall  repudiation. 
(2.)  The  relations  of  the  parties  in  interest  to  John  Walworth  and 
his  acts,  are  not  even  illustrated,  much  less  governed,  by  those 
of  principal  and  agent,  infant  and  adult,  trustee  and  cestui  que 
trust. 

VI.  The  doctrines  of  election,  in  the  limited  extent  they  aie 
recognized  at  law,  and  in  their  full  and  complete  administra- 
tion in  equity,  widely  differ.     At  law,  from  the  imperfection  of 
its  processes,  they  result  in  estoppel  and  forfeiture,  proceeding 
upon  technical  and  logical  grounds  only.     In  equity  they  pro- 

VOL.  I.  56 


442  CASES  IN  THE  COURT  OF  APPEA:.  S 

The  Farmers' Loan  and  Trust  Co.  v.  Walworth. 

ceed  upon  grounds  of  morality  and  conscience,  to  further  and 
sustain  in  just  proportion  the  conflicting  interests  of  all  parties. 
This  case  is  governed  by  the  latter. 

VII.  The  parties  in  interest  should  be  held  to  have  made  no 
election  or  ratification  more  unfavorable  to  themselves  than  the 
court  would  have  obliged  them  to  make,  had  the  facts  within 
the  cognizance  of  the  parties  been  spread   before  the  court. 
1.  The  court  never  would  have  compelled  them  to  elect  at  their 
peril,  between  the  second  and  inferior  security,  and  the  first  se- 
curity involved  at  least  in  litigation,  and  prima  fade  abso- 
lutely nullified.     2.  The  court  never  would  have  permitted 
them  to  elect  to  take  only  the  first  security,  if  by  such  election 
the  second  would  have  become  void,  and  thus  the  burden  of 
their  whole  claim  thrown  upon  the  property  in  which  innocent 
third  persons  had  acquired  rights.     3.  The  operation  of  law  upon 
the  facts,  was,  that  the  first  mortgage  was  not  satisfied;  that  the 
second  mortgage  was  not  a  payment  as  against  us  ;  but  that  as 
regards  Jones  and  Graham  and  these  appellants,  it  was  a  pay- 
ment to  its  value  in  money  and  should  be  so  upheld.     In  equity, 
Walworth,  (or  the  parties  in  interest,  and  in  this  connection  it 
is  immaterial  which,)  became  affected  with  a  trust  to  realize 
the  second  security,  and  sustain  it  as  a  payment  to  its  value  on 
the  first  security,    in    furtherance  of  the  intent  of  Jones  and 
Graham,  and  in  protection  of  these  pppellants,  as  far  as  the  law 
would  respect  that  intent,  or  could  afford  that  protection.    Tim 
has  been  done.     4.  No  party  can  complain  of  this  treatment  of 
the  second  security,  unless  prejudiced  by  it.     No  party  has  been 
prejudiced  by  it,  and  these  appellants  have  been  benefited  to  the 
extent  of  $20,000. 

VIII.  The  equitable  doctrines  of  election  and  of  marshalling 
securities  afford  the  nearest  analogies  and  the  best  guides  for 
the  judicial  interpretation  of  our  acts  in  respect  of  the  two  seen 
rities,  and  the  court  is  referred  for  a  full  discussion  and  exami- 
nation of  them,  and  for  collected  authorities  to  1  Story's  Eq. 
§§  G33  to  037,  and  notes  ;  also  §  499  and  note;  2  id.  §§  1075 
to  1098  and  notes  ;  Dunlap's  Palcy  on  Agency,  173,  324  ;  10 
East,  378  ;  3  Pick.  495,  505. 


SYRACUSE,  NOVEMBER,  1848.  443 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworth. 

BRONSON,  J.  We  are,  I  believe,  all  agreed,  that  the  clerk 
had  no  authority,  without  an  order  of  the  court  of  chancery,  tc 
take  a  new  mortgage  as  a  substitute  for  the  first,  and  discharge 
the  first ;  and  that  the  persons  interested  in  that  mortgage  had 
the  right  to  treat  it  as  a  valid  and  subsisting  security,  notwith- 
standing the  satisfaction  which  had  been  entered  of  record. 
And  this  right  might  be  exercised  not  only  against  the  mort- 
gagors, but  against  the  Loan  and  Trust  Company,  although 
the  company  had  advanced  its  funds  on  the  faith  of  the  sup- 
posed satisfaction. 

This  brings  us  to  the  question  whether  the  owners  of  the 
first  mortgage  have  done  any  act  by  which  they  have  lost  the 
right  of  resorting  to  that  security. 

The  first  or  original  mortgage  was  given  to  secure  the  pay- 
ment of  a  loan,  made  by  the  clerk,  of  moneys  which  had  been 
paid  into  court  on  account  of  the  dower  of  Mrs.  Hosack  in  cer- 
tain lands  which  had  been  sold  in  a  partition  suit.  The  mort- 
gage was  made  payable  to  the  clerk,  as  is  usual  in  such  cases : 
but  it  was  given  and  received  for  the  benefit  of  Mrs.  Hosack 
and  the  persons  who  would  be  entitled  to  the  fund  on  her  death. 
The  clerk  acted  under  an  authority  conferred  by  law ;  but  the 
act  was  done  for  the  owners  of  the  fund,  and  they  were  the 
persons  beneficially  interested  in  the  mortgage.  If  the  security 
had  failed,  the  loss  would  have  fallen  on  them. 

The  second  mortgage  was  upon  other  property.  It  was  not 
an  additional,  but  a  substituted  security :  it  was  to  take  the 
place  of  the  first  mortgage,  which  was  to  be  thereby  satisfied, 
and  satisfaction  was  to  be,  and  was  in  fact  entered  of  record. 
Such  was  the  arrangement  between  the  clerk  and  the  mort- 
gagors. It  was  no  part  of  their  purpose  to  do  a  wrong  to  the 
owners  of  the  fund  :  the  lands  covered  by  the  second  mortgage 
were  deemed  an  ample  security  for  the  debt ;  and  the  only  object 
of  Jones  and  Graham  in  procuring  the  substitution  of  securities 
was,  the  better  to  enable  them  to  complete  a  pending  negotiation 
with  the  Loan  and  Trust  Company  for  a  loan  of  two  hundred 
thousand  dollars.  The  lots  covered  by  the  original  mortgage 
were  included,  with  others,  in  a  conveyance  which  Jones  and 


J44  CASES  IN  THE  COURT  OF  APPEA  uS 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworth. 


Graham  made  to  the  company ;  arid  after  satisfaction  of  the 
original  mortgage  had  been  entered  of  record,  and  in  the  belief 
that  it  had  been  legally  done,  the  company  lent  funds  to  Jonea 
and  Graham  to  an  amount  greatly  exceeding  the  amount  of 
the  mortgage. 

Although  the  clerk  in  consenting  to  the  substitution  of  securi- 
ties made  a  mistake  and  exceeded  his  authority,  he  was  never 
theless  acting  for  the  owners  of  the  fund,  and  not  for  himself.  It 
was  an  act  which  the  fund  owners  might  adopt,  and  which,  when 
ratified,  would  completely  legalize  the  substitution  of  the  second 
mortgage  for  the  first.  The  first  would  thereupon  be  satisfied  in 
law,  as  well  as  in  form,  and  the  owners  of  the  fund  would  have 
the  beneficial  interest  in  the  new  security.  But  it  is  said,  that 
when  an  officer  acts  under  an  authority  conferred  upon  him  by 
law,  the  act  cannot  be  ratified  by  the  person  for  whose  benefit  it 
was  done;  and  we  are  referred  to  the  case  of  Wilsonv.  Tumnian, 
(6  Man.  tj*  Gran.  230,)  in  support  of  that  doctrine.  The  case 
proves  no  such  thing.  The  point  decided  was,  that  when  an 
officer,  under  process  against  A.,  seizes  the  goods  of  B.,  without 
any  direction  or  authority  from  the  creditor,  the  subsequent 
assent  of  the  creditor  to  what  has  been  done,  without  any  act 
on  his  part,  will  not  charge  him  with  the  trespass  which  wa> 
committed  by  the  officer.  But  although  mere  assent  would  not 
make  him  a  trespasser,  his  acts  might  have  that  effect.  Indeed, 
it  was  admitted  by  Baron  Parke  on  the  trial  of  the  cause,  that 
the  attorney  of  the  creditor,  who  was  also  a  defendant,  would 
have  been  liable  for  the  trespass,  if  the  goods  had  been  detained 
under  an  authority  which  he  gave  for  that  purpose  subsequent 
to  the  seizure.  And  besides;  although  tin;  creditor  was  no! 
answerable  to  the  owner  of  the  property  for  the  trespass.  th;ii 
docs  not  prove  that  the  act  of  the  officer  was  in  its  nature  inca- 
pable of  ratification,  so  that  nothing  could  be  done  to  give  it 
effect  as  between  the  creditor  and  the  officer.  It  is  undoubtedly 
a  general  rule,  as  was  said  in  that  case,  that  a  man  cannot 
adopt  an  act  which  was  neither  done  for  him,  nor  in  his  name. 
V'V«?  Saundcrson  v.  White,  5  /?.  ij-  C.  900  ;  Vcrc  v.  As/tby,  10 
id  283.)  But  when  an  officer  executes  process  in  favor  of  a 


SYRACUSE,  NOVEMBER,  1848.  445 

The  Fanners'  Loan  and  Trust  Co.  v.  Walworth. 

creditor,  although  his  authority  is  conferred  by  law,  he  acts  for, 
and  is  the  agent  of  the  creditor  in  such  a  sense  that  the  act  is 
capable  of  ratification.  I  have  met  with  no  case  which  holds  a 
different  doctrine.  In  Armstrong  v.  Gar  row,  (6  Cowen,  465,) 
the  defendant,  as  sheriff,  had  arrested  one  Mumford  on  a  ca.  sa. 
in  favor  of  the  plaintiff,  and  on  receiving  the  promissory  note 
of  a  third  person  for  the  amount  of  the  debt,  had  discharged 
Mumford  out  of  custody.  The  sheriff  had  done  an  illegal  act: 
the  note  was  void  in  his  hands,  and  he  was  liable  to  answer 
the  plaintiff  for  the  escape.  Still  the  plaintiff  was  willing  to 
accept  the  note,  and  demanded  it  of  the  sheriff,  who  refused  to 
give  it  up.  The  plaintiff  thereupon  sued  the  sheriff  for  money 
had  and  received  to  his  use,  and  recovered.  The  sheriff  in- 
sisted that  he  could  only  be  made  liable  in  an  action  for  the 
escape.  But  the  court  held,  that  the  plaintiff  might  affirm  the 
act  of  the  sheriff,  consider  the  execution  paid,  and  call  on  him 
for  the  money.  It  was  further  held,  that  had  the  note  been 
delivered  to  the  plaintiff,  the  ratification  would  have  made  it  a 
valid  security  in  his  hands.  And  from  the  note  of  the  learned 
reporter  it  seems  also  to  have  been  considered,  that  after  the 
plaintiff  had  recovered  against  the  sheriff  on  the  ground  that 
his  act  in  taking  the  note  had  been  affirmed,  the  note  would 
have  been  valid  in  the  hands  of  the  sheriff.  This  rests  on  the 
principle,  that  a  subsequent  ratification  is  equivalent  to  an  ori- 
ginal authority.  In  Pilkington  v.  Green,  (2  B.  c|*  P.  151,)  the 
officer  arrested  Green  on  process  in  the  nature  of  a  ca.  sa.  issued 
by  the  commissioners  of  excise,  and  discharged  Green  out  of 
custody  on  receiving  promissory  notes  for  the  amount  of  the 
debt.  The  commissioners  afterwards  sanctioned  what  had 
been  done  ;  and  on  that  ground  the  notes  were  held  to  be  valid 
in  the  hands  of  the  officer.  The  case  of  Sugars  v.  Brink 
worth)  (4  Camp.  46.)  affirms  the  same  principle.  (See  also 
Corning  v.  Sutherland,  3  Hill,  552.)  There  are  undoubtedly 
many  other  cases  which  have  gone  upon  the  ground  that  an 
act  done  under  an  authority  conferred  by  law  might  be  adopted 
by  the  person  for  whose  benefit  it  was  done.  Indeed,  I  doubt 
whether  the  principle  has  ever  before  been  questioned;  an]  I 


446  CASES  IN  THE  COURT  OF  APPEALS. 

The  Farmers'  Loan  and  Trust  Co.  v.  Wai  worth. 

think  it  quite  safe  to  conclude,  that  the  acts  of  the  clerk  in  rela- 
tion to  the  two  mortgages  in  question  were  of  such  a  nature 
that  they  might  be  ratified  by  the  persons  interested  in  the  fund 
If  the  act  of  the  clerk  was  of  such  a  nature  that  it  might  be 
adopted  and  made  their  own  by  the  persons  interested  in  the 
fund,  it  is  a  point  almost  too  plain  for  discussion  that  it  was  in 
fact  ratified.  Let  us  see  what  was  done.  In  1842,  Mrs.  Hos- 
ack  having  previously  died,  the  owners  of  the  fund  were  desi- 
rous of  taking  the  money  out  of  court,  and  for  that  purpose 
propose  to  call  in  the  loan  which  had  been  made  to  Jones  and 
Graham.  They  learned  from  the  clerk  and  the  public  records 
every  thing-  which  was  necessary  to  enable  them  to  act  with  a 
just  regard  to  their  own  interest.  They  knew  that  the  first 
mortgage  had  been  discharged,  and  that  the  second  had  been 
taken  as  a  substitute  for  it.  They  knew  also  that  Jones  and 
Graham  had  become  insolvent ;  and  from  that  fact  they  infer- 
red, as  well  they  might,  that  Jones  and  Graham  had  parted 
with  the  property  covered  by  the  first  mortgage  to  some  one  ; 
and  if  they  had  looked  at  the  public  records,  they  would  have 
found  the  conveyance  to  the  Loan  and  Trust  Company.  There 
was  clearly  enough  to  put  them  upon  inquiry,  and  they  were, 
I  think,  chargeable  with  notice  of  that  conveyance.  It  is 
enough,  however,  for  the  present,  to  say,  that  they  had  actual 
knowledge  of  every  thing  which  had  taken  place  between  the 
clerk  and  Jones  and  Graham  ;  and  that  they  had  good  reason 
to  believe,  and  did  in  fact  believe,  that  some  third  party  then 
owned  the  lands  which  were  covered  by  the  first  mortgage. 
They  knew,  or  were  bound  to  know,  that  they  had  not  a  shad- 
ow of  title  to  both  of  the  mortgages  :  that  if  they  asserted  their 
rijrht  to  the  first,  they  could  have  no  right  to  the  second  ;  and 
if  they  took  the  second,  they  could  have  no  further  claim  upon 
the  first.  The  alternative  was  thus  fairly  presented,  whether 
they  would  disaffirm  the  act  of  the  clerk,  and  take  the  first 
mortgage ;  or  whether  they  would  adopt  his  act,  and  take  the 
second.  They  elected  to  take  the  second  mortgage  ;  and  did 
take  and  foreclose  it.  and  put  in  their  pockets  the  money  pro- 
duced uy  the  sale  of  the  property.  They  had  no  color  of  title 


SYRACUSE,  NOVEMBER,  1848.  447 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworth. 

to  that  mortgage,  except  upon  the  ground  of  adopting  the  act 
of  the  clerk  in  taking  it ;  and  it  can  hardly  be  doubted  that 
there  was  a  complete  ratification. 

It  is  true  that  the  owners  of  the  fund  had  the  secret  intention 
of  falling  back  upon  the  first  mortgage,  if  the  foreclosure  of  the 
second  should  not  produce  enough  to  pay  the  debt.  They  in- 
tended to  adopt  the  act  of  the  clerk  so  far  as  it  was  beneficial 
to  themselves,  and  to  reject  the  residue.  That,  the  law  would 
not  permit  them  to  do.  They  had  no  choice  but  to  take  the 
whole,  or  none;  and  when  they  confirmed  the  agency  in  part, 
they  ratified  the  whole  transaction.  By  foreclosing  the  second 
mortgage,  they  confirmed  the  discharge  of  the  first.  This 
principle  is  so  just  in  itself,  and  is  so  firmly  settled,  that  I  need 
do  no  more  than  refer  to  one  or  two  books  where  many  of  the 
authorities  are  collected.  (Story,  Agency,  §  250 ;  Paley, 
Agency,  172,  Dunlap's  ed.}  It  would  be  strange  indeed  if  the 
law  would  permit  them  to  have  the  second  mortgage,  to  which 
they  have  no  title  whatever  except  by  affirming  the  act  of  the 
clerk,  and  yet  allow  them  to  reject  that  part  of  his  act  which 
induced  the  giving  of  that  mortgage. 

As  the  owners  of  the  fund  have,  with  their  eyes  open,  agreed 
to  the  satisfaction  of  the  mortgage  which  they  are  now  attempt- 
ing to  foreclose,  it  cannot  be  very  important  to  inquire  whether 
they  acted  wisely  or  not,  or  whether  they  will  be  gainers  or 
losers  by  the  decision  which  they  made.  Nor  is  it  important 
to  know  whether  the  Trust  Company  is  better  or  worse  off  than 
it  would  have  been  had  the  owners  of  the  fund  disaffirmed  the 
agency,  and  foreclosed  the  first  mortgage.  But  as  the  owners 
of  the  fund  think  it  hard  that  they  should  be  held  to  the  election 
which  they  made,  I  will  briefly  inquire  how  the  case  would  stand 
without  any  special  regard  to  the  doctrine  of  ratification. 

And  in  the  first  place,  the  owners  of  the  fund  had  no  right  to 
both  morteraeres.  Although  Jones  and  Graham  were  bound  to 

o     o  o 

pay  the  debt,  they  were  under  no  obligation  to  give  additional 
security  for  the  payment ;  and  they  never  gave  any.  They 
executed  a  new  security  as  a  substitute  for  the  first,  and  on  the 
condition  that  the  first  should  be  discharged  The  owner? 


448     CASES  IN  THE  COURT  OF  APPEALS. 


The  Farmers'  Loan  and  Trust  Co.  ».  Walworth. 

of  the  fund  had  no  right  to  the  new  security,  except  upon  the 
terms  on  which  it  was  made  and  offered  to  them.  If  they  took 
it,  they,  by  that  act,  plainly  consented  to  the  discharge  of  the 
first  mortgage.  If,  on  the  other  hand,  they  determined  to  keep 
the  first  security,  they  could  have  no  title  to  the  second,  because 
they  would  not  assent  to  the  terms  on  which  it  was  offered  to 
them.  I  am  not  aware  of  any  rule,  either  of  law  or  of  equity, 
which  will  permit  a  creditor  to  accept  a  pledge  or  other  security 
for  his  debt,  and  yet  repudiate  the  condition  on  which  the  secu- 
rity was  given.  Debtors  have  rights  as  well  as  creditors.  The 
case  is  still  stronger  in  favor  of  the  Trust  Company,  who  are 
bona  fide  purchasers  from  Jones  and  Graham.  Clearly  the 
owners  of  the  fund  had  no  title  to  both  mortgages ;  and  yet 
the  decree  which  has  been  made  goes  upon  the  ground  that 
they  have  such  a  right,  and  that,  after  having  foreclosed  one 
mortgage,  they  may  resort  to  the  other.  It  is  impossible,  I 
think,  that  such  a  decree  can  stand. 

But  it  is  said,  that  had  there  been  an  attempt  to  foreclose  the 
first  mortgage,  the  Trust  Company  would  have  insisted,  and 
equity  would  have  decreed,  that  the  owners  of  the  fund  should 
•irst  exhaust  their  remedy  under  the  second  mortgage,  and  thus 
xonerate,  in  whole  or  in  part,  the  lands  which  the  company 
nad  purchased  from  Jones  and  Graham  :  that  by  resorting  to 
the  second  mortgage  in  the  first  instance,  the  owners  of  the 
fund  have  done  no  more  than  equity  would  have  compelled 
i hem  to  do,  and  that  the  company  can  sustain  no  damage. 
This  argument  is  open  to  several  objections.  In  the  first  place, 
it  assumes  that  the  owners  of  the  fund  had  two  securities,  and 
a  right  to  resort  to  both  of  them,  when  such  is  not  the  fact. 
They  had  title  to  only  one  security,  with  an  election  between 
two  as  to  which  they  would  take.  In  the  next  place,  the  argu- 
ment assumes  that  the  company  would  have  insisted  that  the 
second  mortgage  should  be  first  foreclosed,  when  there  is  noth- 
ing to  show  that  they  would  have  made  any  such  claim.  I 
.  liink  the  company  would  have  reasoned  differently,  and  said. 
•'  We  cannot  prevent  the  foreclosure  of  the  first  mortgage,  and 
will  not  attempt  it :  if  we  are  thus  deprived  of  the  property 


SYRACUSE,  NOVEMBER,  1848.  449 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworlh. 

which  we  purchased  from  Jones  and  Graham  on  the  faith  that 
the  first  mortgage  was  satisfied,  we  shall  have  a  clear  equitable 
claim  to  the  use  of  the  second  mortgage  for  our  indemnity,  and 
equity  will  decree  us  such  right :  that  will  be  just  as  between 
us  and  Jones  and  Graham  ;  it  will  leave  to  the  owners  of  the 
fund  all  the  security  which  they  ever  had  a  right  to  claim  ;  and 
no  wrong  will  be  done  to  any  one."  Thus  they  might,  and 
undoubtedly  would  have  reasoned,  if  they  had  followed  their 
own  interest.  There  is  no  foundation,  therefore,  for  the  argu- 
ment, that  the  owners  of  the  fund  have  done  only  what  equity 
would  have  compelled  them  to  do  had  they  resorted  to  the  ori- 
ginal mortgage  in  the  first  instance.  The  company  would 
not  have  asked  such  a  decree  ;  or  at  any  rate,  no  one  can  un- 
dertake to  affirm  that  they  would  have  done  it.  If  the  owners 
of  the  fund  had  wished  to  know  what  the  company  would  say 
on  a  bill  filed  to  foreclose  the  original  mortgage  in  the  first  in- 
stance, they  should  have  filed  such  a  bill,  and  made  the  com- 
pany a  party,  ahd  thus  allowed  them  to  answer  for  themselves. 
As  that  was  not  done,  the  owners  of  the  fund  can  have  no  right 
now  to  guess  what  the  company  would  have  done  under  such 
circumstances,  and  build  up  a  claim  upon  that  foundation. 

And  finally,  the  course  which  the  owners  of  the  fund  have 
pursued,  and  are  now  pursuing,  will  give  them  more  than  their 
just  rights,  and  will  do  it  at  the  expense  of  the  Trust  Company. 
The  sale  on  the  foreclosure  of  the  second  mortgage  took  place 
in  October,  1842.  Had  the  first  mortgage,  instead  of  the  sec- 
ond, been  foreclosed  at  that  time,  I  do  not  understand  from  any 
of  the  witnesses  that  the  property  would  have  brought  enough 
to  pay  the  debt.  The  assistant  vice  chancellor  states  the  effect 
of  the  evidence  to  be,  that  on  a  sale  in  the  fall  of  '42,  the  lands 
included  in  the  first  mortgage  would  not  have  brought  any 
more  than  was  realized  from  the  sale  under  the  second  mort- 
gage. Assuming  that  the  lands  conveyed  by  the  two  mort- 
gages would  at  that  time  have  sold  for  equal  sums  of  money,  let 
us  see  how  the  case  stands.  The  owners  of  the  fund  have  got 
already — not  the  whole  debt — but  all  that  they  ever  had  a 
right  to  claim  beyond  the  personal  obligation  of  the  mortgagors 

VOL.  I.  57 


450  CASES  IN  THE  COURT  OF  APPEALS. 


The  Farmers'  Loan  and  Trust  Co.  r.  Walworth. 


They  have  bad  their  election  between  the  two  mortgages;  and 
as  it  turns  out,  the  choice  was  not  a  bad  one;  for  they  have 
got  as  much  by  taking  the  second  as  they  would  have  obtained 
by  taking  the  first.  And  further,  had  they  elected  to  take  the 
first  mortgage,  they  would  have  got  no  more  than  they  have  got 
now  ;  and  they  would  then  have  had  no  color  of  title  to  the  se- 
cond mortgage.  The  Trust  Company  would  in  that  case  have 
had  a  plain  equity  to  use  that  mortgage  for  their  benefit ;  and 
thus  they  would  have  got  a  lien  upon  as  much  property  in  value, 
as  they  would  have  lost  by  the  foreclosure  of  the  first  mortgage. 
In  short,  whatever  election  between  the  two  mortgages  the  own- 
ers of  the  fund  might  have  made,  the  Trust  Company  would  have 
remained  unharmed.  But  how  is  it  now  ?  After  the  owners  of 
the  fund  had  got  all  which  they  had  any  right  to  claim  from  their 
land  security,  and  had  left  the  Trust  Company  nothing  more 
than  its  just  rights,  they  filed  this  bill,  and  have  obtained  a  decree 
charging  the  lands  conveyed  to  the  company  with  the  payment 
of  more  than  eighteen  thousand  dollars.  I  can  see  no  just  foun- 
dation for  such  a  decree,  nor  for  any  decree,  against  the  company. 

It  is  possible  that  the  lands  covered  by  the  first  mortgage 
would  have  brought  more  on  a  sale  in  the  fall  of  '42,  than  was 
realized  from  the  sale  under  the  second  mortgage.  But  it  is 
evident  from  the  nature  of  the  case  as  detailed  by  the  witnesses, 
that  it  is  now  utterly  impossible  to  determine,  with  any  degree 
of  accuracy,  what  the  lands  in  the  first  mortgage  would  have 
brought  at  that  time.  There  can  at  the  most  be  nothing  better 
than  mere  conjecture,  without  any  such  certainty  as  is  neces- 
sary for  the  basis  of  a  judicial  determination. 

In  any  view  which  I  have  been  able  to  take  of  the  case,  we 
are  brought  to  the  same  conclusion.  I  am  of  opinion  that  the 
decrees  of  the  court  of  chancery  and  the  supreme  court  should 
be  reversed  ;  that  the  bill  should  be  dismissed ;  and  that  the 
Trust  Company  should  have  costs  in  the  courts  below.  It  is 
not  usual  to  give  costs  in  this  court  on  the  reversal  of  a  decree. 

RUGGLES,  J.  delivered  an  opinion  in  favor  of  reversing  the 
decree,  concurring  substantially  in  the  views  of  BKONSON,  J 


SYRACUSE,  NOVEMBER,  1848.  45 1 

The  Farmers'  Loan  and  Trust  Co.  v.  Walworth. 

GARDINER,  J.  also  delivered  an  opinion  for  reversal  upon 
similar  grounds.  He  further  remarked  as  follows  : 

It  was  insisted  that  the  equitable  doctrine  of  marshalling  se 
curities  affords  the  nearest  analogies  and  best  guide  for  the  inter- 
pretation of  the  acts  of  the  complainants  in  reference  to  the  two 
securities  in  question.  I  am  unable  to  perceive  any  analogy 
between  the  cases.  The  familiar  principle,  that  if  one  party 
has  a  lien  on  two  funds  for  a  debt,  and  another  party  a  lien  on 
one  of  those  funds  for  another  debt,  equity  will  compel  the 
former  to  resort  to  the  fund  in  which  he  has  an  exclusive  in- 
terest in  the  first  instance  for  satisfaction,  has  no  application  to 
these  parties.  To  authorize  the  interference  of  a  court  of 
equity  in  the  case  supposed,  the  first  creditor  must  have  a  lien 
upon,  or  interest  in,  each  of  the  funds,  with  the  right  as  be- 
tween him  and  his  debtor,  to  resort  to  both  or  either  of  them 
for  satisfaction.  But  the  complainants  in  interest  in  this  cause, 
as  we  have  seen,  never  had  a  lien  upon  both  of  these  mortgages. 
They  had  an  election  which  of  the  two  they  would  take,  and 
when  that  was  determined,  the  exclusive  and  absolute  right  to 
the  one  chosen,  and  that  only. 

There  is  another,  and  to  my  mind  an  insuperable  objection, 
to  the  maintenance  of  this  suit.  The  equity  by  which  the 
complainants  would  avoid  the  effect  of  their  own  deliberate 
acts  in  affirmance  of  the  second  mortgage  and  a  ratification 
of  the  act  of  the  clerk  in  discharging  the  first,  is  an  equity  in  be- 
half of  the  Trust  Company,  and  not  in  favor  of  the  complainants. 

The  design  of  Jones  and  Graham  and  the  clerk,  as  we  have 
seen,  was  to  substitute  the  second  for  the  first  mortgage.  They 
failed  in  this,  as  the  complainants  allege,  in  consequence  of  not 
obtaining  the  sanction  of  the  court.  The  appellants,  who  in 
good  faith  advanced  their  money,  relying  upon  the  validity  of 
the  discharge  of  the  original  mortgage  executed  by  Walworth, 
must  lose  all,  or  be  remitted  to  the  second  security.  This  is 
their  equity.  It  results  from  the  election  of  the  complainants 
to  avail  themselves  of  their  legal  right  to  the  first  mortgage. 
How  can  this  equity  be  invoked  by  the  complainants  to  sustain 
this  suit?  By  what  right  did  they  constitute  themselves  the 


452  CASES  IN  THE  COURT  OF  APPEALS. 

Vanderheyden  t>.  Mallory. 

guardian  of  the  Trust  Company,  and  undertake,  by  foreclosing 
the  second  mortgage,  to  determine  for  the  latter  the  time  and 
circumstances  under  which  they  shall  enforce  a  claim  implied 
in  equity  exclusively  in  their  favor?  The  foreclosure  of  the  sec- 
ond mortgage,  without  adopting  the  acts  of  the  clerk  in  dis- 
charging the  first,  in  virtue  of  the  equity  above  mentioned,  and 
without  making  the  appellants  parties  to  the  suit,  if  not  a  fraud 
upon  them,  was  without  color  of  right. 

The  supposed  trust  in  favor  of  the  appellants,  with  which 
the  complainants  now  claim  they  were  affected,  was  not  sug- 
gested or  alluded  to  in  that  suit,  but  they  foreclosed  as  the 
rightful  and  absolute  owners  of  the  second  mortgage.  I  think 
they  must  be  concluded  by  their  election  to  accept  the  second 
security,  made  under  the  circumstances  and  with  the  knowledge 
disclosed  by  the  pleadings  and  proofs  in  the  cause. 

The  bill  can  be  sustained  only  upon  the  assumption  that  the 
second  mortgage  was  given  as  additional  security  for  the  same 
debt,  an  assumption  without  proof  and  entirely  repugnant  to 
the  arrangement  of  the  parties  and  the  purpose  for  which  it 
was  executed.  The  decrees  of  the  supreme  court  and  of  the 
assistant  vice  chancellor  must  be  reversed. 

And  thereupon  the  decrees  of  the  assistant  vice  chancellor 
and  of  the  supreme  court  were  reversed,  and  the  bill  ordered  to 
be  dismissed  with  costs  in  the  courts  below,  but  not  on  this 
appeal. 


VANDERHEYDEN   and   wife,   appellants,  vs.    MALLORY   and 

452  HUNTER,  respondents. 

18  '277 

42  "642     The  separate  estate  of  a  married  woman  is  not  liable  at  common  law  for  her  debts 

contracted  before  marriage;  and  the  only  ground  on  which  it  can  bn  reached  in 
equity,  is  that  of  appointment,  i.  c.  some  act  of  hers  after  marriage  indicating  an 
intention  to  charge  the  property. 

The  bankruptcy  of  the  husband;  although  it  extinguishes  the  debt  as  t>  him,  and 
suspends  the  legal  remedy  as  to  her  during  the  coverture,  does  not  afford  any 
ground  for  proceeding  in  equity  to  charge  her  separate  estate. 


SYRACUSE,  NOVEMBER,  1848.  453 

Vanderheyden  v.  Mallory. 

The  creditor  in  such  a  case  may  prove  his  debt  and  share  in  the  distribution  of  the 
bankrupt's  estate. 

Afenic  sole,  having  contracted  a  debt,  and  owning  some  shares  of  bank  stock,  mar- 
ried. After  marriage,  the  stock,  with  the  consent  of  the  husband,  was  transferred 
to  a  third  person  for  the  purpose  of  having  it  transferred  back  to  her  for  her  sole 
and  separate  use,  which  was  accordingly  done.  She  also  held  other  shares  of 
bank  stock  which  had  been  transferred  to  her  separate  use  by  the  executor  of  her 
father's  estate.  The  creditor  sued  the  husband  and  wife  at  law,  and  being  met 
by  a  plea  of  the  husband's  bankruptcy,  discontinued.  He  then  filed  a  bill  in 
equity  for  the  purpose  of  reaching  the  bank  stock.  No  fraud  in  the  transfer  to  the 
wife's  separate  use  being  alleged,  nor  any  act  of  the  wife  after  marriage  indicating 
an  intention  to  charge  this  fund ;  field,  that  the  bill  could  not  be  sustained. 

It  seems,  that  when  a  debt  is  contracted  by  a  woman  during  coverture,  either  for  her- 
self or  as  surety  for  her  husband,  this  will  be  prima  facie  evidence  of  an  appoint- 
ment or  appropriation  of  her  separate  estate  to  the  payment  of  the  debt. 

But  this  doctrine  has  no  application  where  the  debt  was  contracted  by  the  woman 
before  marriage.  The  act  of  marriage  docs  not  raise  an  appointment ;  nor  does  a 
promise  by  her  and  her  husband  to  pay  the  debt  out  of  some  other  fund  not  con- 
veyed to  her  separate  use,  e.  g.  a  legacy  or  distributive  share  in  her  former  hus- 
band's estate,  enable  the  creditor  to  reach  her  separate  estate. 

The  law  casts  upon  the  husband  a  temporary  liability  for  the  debts  of  the  wife  con- 
tracted before  marriage.  This  liability  ceases  with  the  coverture,  unless  judgment 
has  been  recovered  against  both.  If  the  wife  survive  the  husband  and  judgment 
have  not  been  recovered,  her  sole  liability  revives.  Per  JEWETT,  C.  J. 

The  bankruptcy  of  the  husband  extinguishes  the  liability  as  to  him ;  but  it  revives 
against  the  wife  if  she  survive  her  husband.  Per  JEWETT,  C.  J. 

APPEAL  from  chancery.  Joel  Mallory  and  John  Hunter 
filed  their  bill  in  the  court  of  chancery  against  Levinus  Van- 
derheyden and  Lenchy  his  wife,  stating  the  case  in  substance 
as  follows  :  Between  the  30th  day  of  April,  1835,  and  the  6th 
day  of  December,  1837,  the  said  Lenchy  being  during  that  pe- 
riod the  widow  of  John  J.  Bradt  and  a  feme  sole,  became  in- 
debted to  the  complainants  in  the  sum  of  $2022,96,  for  goods 
sold  and  moneys  advanced  at  different  times.  The  bill  averred 
that  the  complainants  credited  her  in  this  sum  upon  the  know- 
ledge that  she  was  entitled  to  a  large  amount  of  property  from 
the  estate  of  her  late  husband.  The  complainants  were  in- 
debted to  the  estate  of  Bradt  in  a  large  sum,  and  while  their 
account  was  accruing  against  Lenchy  she  agreed  with  them 
that  she  would  make  an  arrangement  with  the  executor  of 


454     CASES  IN  THE  COURT  OF  APPEALS. 

Vanderheyden  ».  Mallory. 

Bradt  to  have  such  account  applied  against  their  indebtedness 
to  that  estate. 

On  the  6th  of  December,  1837,  the  said  Lenchy  and  Le 
vinus  intermarried,  and  between  that  time  and  February,  1843, 
they  frequently  promised  that  the  account  against  Lenchy 
should  be  arranged  in  the  manner  above  stated,  and  in  the  ex- 
pectation that  this  would  be  done  the  complainants  neglected 
to  enforce  the  demand :  but  about  the  time  last  stated  they  re- 
fused to  make  such  arrangement  or  any  other  for  the  payment 
of  the  debt.  The  complainants  therefore,  in  May,  1843,  insti- 
tuted a  suit  in  the  supreme  court  against  Vanderheyden  and 
wife  upon  such  account,  to  which  they  pleaded  in  bar  that  on 
the  17th  day  of  April,  1843,  the  said  Vanderheyden  was  dis- 
charged as  a  bankrupt,  from  all  his  debts  under  the  act  of  con- 
gress passed  August  19,  1841.  This  plea  was  true  in  fact,  and 
the  complainants,  being  advised  that  it  was  an  effectual  bar, 
discontinued  the  suit. 

The  bill  further  stated  that  during  the  time  the  complain- 
ants' account  was  accruing  against  Lenchy,  she  was  worth 
a  large  amount  of  property  bequeathed  to  her  by  her  late  hus- 
band, a  large  part  of  which  was  unpaid  to  her  and  yet  remained 
in  the  hands  of  the  executor,  but  a  portion  of  which  had  then 
been  received  by  her  and  invested  in  bank  stocks ;  that  before 
any  part  of  the  complainants'  demand  accrued  against  her,  she 
was  the  owner  of  thirty-five  shares  of  bank  stock,  (the  value  of 
which  was  $2100,)  which  stood  in  her  own  name  ;  that  she  con- 
tinued to  be  the  owner  of  those  shares  while  such  demand  was 
accruing,  and  was  still  the  owner  thereof  in  her  own  right ; 
that  after  her  marriage  with  Vanderhcyden,  she,  with  the  ad- 
vice and  consent  of  her  husband,  transferred  said  thirty-five 
shares  to  a  third  person,  for  the  purpose  of  having  the  same 
transferred  back  to  her  for  her  sole  and  separate  use,  which  was 
immediately  done,  so  that  at  the  filing  of  the  bill  she  held  those 
shares  in  her  own  name  and  to  her  sole  and  separate  use : 
also  that  at  the  filing  of  the  bill  she  was  the  owner  in  her  own 
right  of  nineteen  other  shares  of  bank  stock,  received  by  her  out 
of  the  estate  of  her  father,  and  which  the  executor  of  that  estate 


SYRACUSE,  NOVEMBER,  1848.  455 

Vanderheyden  v.  Mallory. 

had  transferred  to  her  sole  and  separate  use :  also  that  she 
was  possessed  in  her  own  name  and  right  of  a  large  amount 
of  other  property. 

The  prayer  of  the  bill  was  that  Lenchy  Vanderheyden  might 
be  decreed  to  pay  the  complainants'  demand,  and  to  apply  for 
that  purpose  her  separate  property  before  mentioned,  or  so  much 
thereof  as  should  be  necessary,  and  for  general  relief.  The  de- 
fendants demurred  to  the  bill,  as  well  generally  for  want  of 
equity,  as  for  reasons  more  specially  assigned.  Their  demurrer 
was  overruled  by  the  vice  chancellor  of  the  third  circuit,  to  whom 
the  case  was  referred  for  hearing,  and  his  decision  was  affirmed 
by  the  chancellor  on  appeal.  The  defendants  appealed  to  this 
court. 

N.  Hill,  Jr.  for  appellants.  I.  The  debt  in  question  was 
not  contracted  under  circumstances  giving  the  respondents 
a  right  to  proceed  against  the  separate  property  of  Mrs. 
Vanderheyden,  nor  has  any  thing  been  done  by  her  since 
which  gives  such  right.  It  was  contracted  by  Mrs.  Vanderhey- 
den as  a.  feme  sole,  and  the  bill  does  not  pretend  that  the  bank 
stock  in  question  was  even  an  inducement  to  the  credit  given 
her.  On  the  contrary,  it  alleges  that  the  complainants  relied 
upon  means  which  they  expected  she  would  derive  from  the 
estate  of  her  former  husband,  and  not  upon  the  bank  stock, 
which  she  then  owned.  The  subsequent  acts  of  Mrs.  Vander- 
heyden show  no  intention  to  charge  the  bank  stock  with  the 
complainant's  debt,  but  only  the  property  held  by  Bigelow,  as 
executor  of  her  former  husband.  The  only  ground  upon  which 
the  separate  estate  of  a.  feme  covert  can  be  reached  in  equity  is 
that  of  appointment ;  i.  e.  some  act  on  her  part  clearly  evincing 
an  intention  to  charge  the  property  proceeded  against.  And 
as  to  the  bank  stock  in  question,  such  an  intention,  so  far  from 
being  shown,  is  disproved  by  all  the  circumstances.  (2  Story's 
Eq.  §  1399  ;  2  Rop.  Husb.  and  Wife,  241  to  244.) 

But  the  doctrine  of  appointment  has  no  application  to  this 
case.  That  relates  exclusively  to  acts  done  by  married  women 
as  such ;  and  there  is  no  pretence  that  Mrs.  Vanderheyden, 


456  CASES  IN  THE  COURT  OF  APPEALS. 

Vanderheyden  r.  Mallory. 

since  she  married  her  present  husband,  has  done  any  act  which 
can  be  construed  into  an  appointment,  cither  express  or  implied. 
(2  Story's  Eq.  §§  1398,  1399,  1400.)  No  case  holds  that  the 
mere  act  of  marriage  raises  an  appointment  by  implication  ; 
and  therefore  the  most  the  complainants  can  claim  is,  that  their 
demand  is  a  general  debt  of  the  wife,  contracted  on  her  gene- 
ral personal  responsibility.  And  the  authorities  agree  that, 
for  such  a  debt,  her  separate  property  cannot  be  reached  in 
equity,  any  more  than  at  law.  (2  Story'' s  Eq.  §  1398  ;  2  Rop. 
Husb.  and  Wife,  241  to  244.)  The  chancellor  does  not  put 
his  decision  upon  the  doctrine  of  appointment,  but  upon  an  as- 
sumed equity,  arising  out  of  the  husband's  discharge  in  bank- 
ruptcy ;  and  he  admits  that  no  precedent  can  be  found  for  the 
decision  except  Biscoe  \.  Kennedy,  (I  Browrfs  C/i.  Cas.  18, 
note.}  We  contend  that  he  erred,  for  the  following  reasons: 
1.  The  husband's  discharge  in  bankruptcy  creates  no  such 
equity  as  against  the  wife.  Though  the  remedy  by  action  is 
barred,  the  creditor  can  prove  his  debt,  under  the  commission, 
and  thus  reach  the  property  of  the  husband  not  only,  but  all 
the  property  of  the  wife  not  settled  to  her  separate  use.  (Ban/e- 
rupt Act,  1841,  §  3  ;  4  Paige,  73,  4.)  2.  The  same  species  of 
equity  exists,  therefore,  upon  principles  of  natural  justice,  where 
the  remedy  by  action  proves  inadequate,  by  reason  of  the  hus- 
band's pecuniary  inability :  and  yet  no  one  pretends  that  this 
furnishes  ground  for  charging  the  wife's  separate  estate.  3.  The 
decision  subjects  the  separate  property  of  the  wife  for  her  gene- 
ral debts,  contracted  upon  her  general  personal  responsibility, 
which  i.s  contrary  to  law.  ('.I  Story's  Eq.  {>  1398;  2  Hop. 
Husb.  and  Wife,  241  to  24  1.)  The  case  of  Jliscoe  \.  Kenne- 
dy, relied  on  by  the  chancellor,  ought  not  to  govern  the  present 
question.  It  is  not  found  in  any  regular  series  of  reports,  but 
only  in  a  note  furnished  the  reporter  by  counsel.  It  has  never 
been  acted  upon,  or  even  referred  to  since,  by  any  judge  or  wri- 
ter, till  the  decision  of  this  case.  (Ram  on  Leg.  Jndg.  49,  50.) 
Brown's  Reports  are  at  best  but  poor  authority.  ( Greet. I.  Ovcrr. 
Cas.  57  ;  Ram  on  Leg.  Jndg.  101.)  The  particular  reasons 
for  the  decision  are  not  stated,  and  cannot  be  ascertained.  (Id 


SYRACUSE,  NOVEMBER,  1848.  457 

Vanderheyden  v.  Mallory. 

21.)  The  controlling  reason  may  have  been  that  the  husband 
was  regarded  as  civilly  dead  after  outlawry,  and  the  wife  thus 
restored  to  her  capacity  as  a  feme  sole.  (2  Kent's  Com.  158  ; 
2  Wm.  Bl.  Rep.  1081,  2.)  Or  the  reason  may  have  been  that 
the  settlement  on  the  wife  was  fraudulent  as  to  creditors,  and 
so  the  property  was  the  husband's  ;  that  being  the  only  ground 
taken  by  the  counsel  who  argued  the  cause.  The  absence  of 
all  reliable  authority  in  favor  of  the  principle  assumed  by  the 
chancellor,  tends  strongly  to  prove  that  no  such  principle  exists. 
(Ram  on  Leg.  Judg.  156,  7.) 

II.  The  discharge  in  bankruptcy  of  Mr.  Vanderheyden  ope- 
rated as  an  extinguishment  of  the  debt  against  his  wife,  at  least 
during  coverture.     The  debt  was  proveable  under  the  bankrupt 
act,  and  therefore  is  extinguished,  at  least  during  coverture. 
(Bank,  act,  §§  4,  5 ;  12  Verm.  Rep.  510,  511  :  13  Pick.  64, 67.) 
The  very  fact  that  the  bankrupt  act  operated  to  discharge  the 
husband  is  conclusive  to  show  that  the  complainants'  claim  is 
a  debt,  within  the  meaning  of  the  act.     If  so,  it  is  extinguished. 
The  discharge  operates  upon  the  debt  in  the  same  manner  as 
a  release  of  the  husband  by  the  creditor,  and  of  course  extin- 
guishes it.     Moreover,  it  has  been  expressly  decided  that  the 
wife's  debts  dum  sola,  are  absolutely  extinguished  by  the  hus- 
band's discharge  as  a  bankrupt  or  insolvent.     (2  Nev.  §*  Mann 
255  ;    10  Mod.  Rep.  243  ;    1  P.   Wms.  249  ;   Gilb.  Eq.  318  ; 
Reeve's  Do?n.  Rel.  71 ;  2  Kent's  Com.  146.)     The  reasoning  on 
which  these  cases  are  based  applies  to  the  remedy  in  equity  as 
well  as  at  law.     And  the  bankrupt  act  declares,  moreover,  that 
the  certificate  shall  be  a  full  and  complete  discharge  of  all  debts, 
in  all  courts,  &c.  and  may  be  pleaded  as  a  full  and  complete 
bar  to  all  suits  brought  in  any  court.     (Bank,  act,  §  5.) 

III.  The  bill  is  not  framed  to  reach  the  bank  stock  on  the 
ground  that  there  was  fraud  in  transferring  it  to  the  wife's  sep 
arate  use.     On  the  contrary,  it  treats  the  bank  stock  as  her 
separate  property,  and  seeks  to  reach  it  as  such,  thus  conceding 
the  validity  of  the  transfer. 

IV.  There  is  no  equity  in  this  case.     The  bill  shows  that 
independent  of  the  bank  stock,  the  husband  acquired  a  large 

VOL.  I.  58 


458     CASES  IN  THE  COURT  OF  APPEALS. 

Vanderhcydcn  t>.  Mallory. 

amount  of  property  from  his  wife.  The  complainants  might 
have  reached  this  by  due  diligence,  but  chose  to  wait  until  the 
husband's  other  creditors  had  exhausted  it,  and  now  claim  to 
seize  the  small  remnant  in  question.  The  wife  has  been  obliged 
to  submit  to  the  disadvantages  arising  from  bankruptcy,  and 
is  therefore  entitled  to  share  in  its  advantages. 

V.  But  the  bill  shows  that  the  complainants  have  not  ex- 
hausted their  remedy  against  the  husband's  estate.  Equity 
requires  that  they  should  prove  their  debt  under  the  com- 
mission, and  only  resort  to  the  wife's  separate  property  for  the 
balance. 

D.  Buel,  Jr.  for  the  respondents.  I.  The  doctrine  established 
in  the  courts  of  equity  in  the  earlier  as  well  as  in  the  more 
recent  cases  is,  that  a  married  woman,  as  to  her  separate  prop- 
erty, is  to  be  deemed  a  feme  sole,  and  therefore  that  her  en- 
gagements, although  they  would  not  bind  her  person,  should 
bind  her  separate  property.  Among  the  numerous  early  cases 
are  the  following  :  Peacock  v.  Monk,  (2  Ves.  sen.  190  ;)  Hitlmc 
v.  Tenant,  (1  Brown's  Ch.  C.  1G.)  and  the  cases  cited  in  Mr. 
Eden's  note  ;  Lillia  v.  Airey,  (1  Vcs.  277  ;)  Balpin  v.  Clarke, 
(17  id.  277.)  The  most  recent  cases  in  England  accord  with  the 
early  cases,  and  establish  the  position,  that  if  a  feme  covert 
having  separate  property  obtains  credit,  her  separate  property 
shall  be  subject  to  the  debt  without  any  special  appointment  01 
charge,  written  or  verbal.  (Murrey  v.  Burlcc,  4  Simons'1  C/t. 
Rep.  82,  S.  C.  G  Eng.  Ch.  R.  43 ;  Same  case  on  appeal  to 
Ld.  Ch.  Brougham,  3  Mylnc  $•  Keen,  209,  and  9  English 
Ch.  R.  1  ;  Owen  v.  Dickinson,  1  Craig  $•  Philip,  48.)  The 
American  cases,  and  especially  those  decided  in  the  court  of 
chancery  of  this  state,  and  the  late  court  of  errors,  go  the  full 
length  of  the  earlier  and  more  recent  English  cases.  (N.  A. 
Coal  Co.  v.  Dyott,  7  Paige,  9,  IS.  C.  on  appeal,  20  Wend.  570 ; 
Gardner  v.  Gardner,  7  Paige,  112,  S.  C.  on  appeal,  22  Wend. 
52G ;  Jacques  \.  The  Methodist  Episcopal  Church,  17  John 
548,  per  Spencer,  C.  J.  and  Plait,  J.) 


SYRACUSE,  NOVEMBER,  1848.  459 

Vanderheyden  v.  Mallory. 

II.  The  facts  stated  in  the  bill  and  admitted  by  the  demur- 
rer present  at  least  as  strong  a  case  for  the  exercise  of  the 
power  of  the  court  over  the  separate  property  of  Mrs.  Vander- 
heyden, as  would  have  been  presented  if  the  debt  had  been 
contracted  subsequently  to  her  marriage  to  Vanderheyden,  for, 

1.  The  debt  was  contracted  on  the  credit  of  her  being  the 
owner  of  property  derived  from  her  former  husband,  and  from 
her  father,  which  she  has  continued  to  own,  and  still  enjoys. 

2.  The  stocks  sought  to  be  subjected  to  the  complainants'  debt 
were  transferred  to  her  sole  and  separate  use  on  the  advice  ot 
her  husband,  and  shortly  before  his  bankruptcy,  and  were  thus 
kept  from  passing  into  the  hands  of  the  assignee  in  bankruptcy; 
and  3.  Vanderheyden,  by  his  discharge  in  bankruptcy,  is  for- 
ever exonerated  from  personal  liability  for  the  debt,  and  no  suit 
at  law  can  be  brought  against  his  wife  during  her  husband's 
life.     (Miles  v.  Williams,  1  P.  Wms.  258.) 

The  consequence  of  denying  the  prayer  of  the  bill  would  be 
to  enable  Vanderheyden  to  make  use  of  his  bankrupt  discharge, 
not  only  to  rid  himself  of  his  own  debts  and  free  himself  from 
suits  for  his  wife's  debts,  but  by  a  new  species  of  subrogation  to 
take  the  place  of  her  creditors  in  respect  to  her  separate  prop- 
erty, and  instead  of  having  it  applied  to  pay  debts  which  were 
contracted  on  the  credit  of  it,  quietly  enjoy  it  himself.  It  is 
not  strange  the  chancellor  felt  so  strongly  the  injustice  of  al- 
lowing the  defendants  to  put  the  complainants  at  defiance,  in 
respect  to  the  wife's  separate  property,  as  to  induce  him  to  de- 
clare that  if  a  precedent  for  granting  the  relief  asked  for  was 
wanting,  he  should  deem  it  his  duty  to  make  one.  But  the 
chancellor  did  not  find  it  necessary  in  this  case  to  change  the 
law  or  make  a  precedent.  A  case  was  decided  by  Sir  Thomas 
Clarke,  master  of  the  rolls  in  1762,  which  is  analogous  and 
fully  sustains  the  grounds  on  which  the  bill  was  filed.  (Bris- 
coe  v .  Kennedy,  1  Brown's  Cli.  C.  18,  reported  by  Mr.  Eden 
in  note  to  Hulme  v.  Tenant.]  The  only  difference  between 
that  case  and  ours  is,  that  in  Briscoe  v.  Kennedy  a  suit  at  law 
was  instituted  against  husband  and  wife,  and  the  husband  (who 


460  CASES.  IN  THE  COURT  OF  APPEALS. 


Vandcrhcydcn  v.  Mallory. 


was  out  of  the  realm.)  prosecuted  to  outlawry  before  the  court 
sustained  the  bill.  But  outlawry  in  civil  cases  is  a  mere  pro- 
cess. It  is  not  civil  death,  nor  equivalent  to  a  divorce.  (Bac. 
Abr.  Outlawry,  D.  2.)  In  our  case,  the  defendants  in  the  suit 
at  law,  pleaded  the  bankrupt  discharge.  In  both  the  remedy  at 
law  was  resorted  to  and  exhausted  before  filing  the  bill.  The 
authority  of  Briscoe  v.  Kennedy,  therefore,  furnishes  a  prece- 
dent in  point. 

III.  But  it  is  objected  that  the  effect  of  the  bankrupt  dis- 
charge of  Vanderheyden  was  not  only  to  exonerate  him  from 
the  claim,  but  that  it  cancelled  the  debt  against  the  wife  and 
her  property,  and  destroyed  all  remedies  in  equity  as  well  as  at 
law  for  the  debt.  This  proposition,  which  the  appellants'  coun- 
sel endeavored  to  sustain  by  a  remark  of  Ch.  J.  Parker,  in  Miles 
v.  Williams,  (1  -P.  Wins.  258.)  we  deny.  The  point  was  not 
involved  in  that  case.  And  so  the  chief  justice  virtually  admits. 
He  says  :  "  It  will  be  a  discharge  to  her,  at  least  a  temporary 
one,  viz :  during  the  husband's  life.  But  though  it  be  not  ne- 
cessary to  give  any  opinion  upon  that,  yet  I  think  it  will 
amount  to  a  perfect  release,  and  the  wife  will  be  discharged 
forever."  The  opinion  respecting  the  effect  of  the  certificate 
being  an  absolute  discharge  of  the  wife  from  the  debt,  is  clearly 
and  avowedly  an  obiter  dictum,  and  no  decision  sanctioning 
it  as  law  in  any  case  where  the  question  directly  arose,  can, 
we  think,  be  produced.  It  would  destroy  the  symmetry  of  the 
law  respecting  the  relation  of  husband  and  wife.  If  the  wife 
dies  before  judgment  is  obtained  against  the  husband,  lie  is  no(. 
liable;  but  if  she  survives  him,  she  is  liable;.  AY Ky  should  a 
discharge  of  the  husband  in  bankruptcy  have  a  greater  efTect 
in  releasing  the  wife's  debts,  contracted  dui>c  sola,  than  his 
death?  (Clancy  on  the  rig/its  of  married  women,  13  to  16  ; 
Reeve's  Dom.  Rcl  OS,  09;  2  Kent's  Com.  143,  144,  \th  cd. ; 
Woodman  v.  Chapman.  1  Camb.  R.  189,  and  notes ;  Heard 
v.  Stamford,  3  P.  Wms.  409  )  There  is  nothing  in  the  bank- 
rupt law  of  1811  that  gives  to  the  discharge  of  the  husband  the 
effect  contended  for  by  the  appellant.  The  4th  section  pro- 


SYRACUSE,  NOVEMBER,  184S.  45 j 


Vanderheyden  v.  Mallory. 


vides,  that  every  bankrupt  complying  with  the  provisions  of 
the  act  "  shall  be  entitled  to  a  full  discharge  from  all  his  debts.' 
As  the  wife's  debts  did  not  become  his  debts  by  the  marriage, 
why  should  a  discharge  from  his  debts  release  the  debts  against 
her?  The  common  law  doctrine,  that  if  one  of  two  or  more 
joint  debtors  is  released,  the  release  operates  to  discharge  the 
others,  cannot  apply ;  for  the  husband  is  in  no  sense  a  joint 
debtor  with  the  wife,  as  to  her  debts  contracted  dum  sola,  be- 
fore judgment  obtained  against  them. 

IV.  If  it  is  objected  that  the  stocks  are  not  held  by  a  trustee, 
but  invested  in  Mrs.  Vanderheyden's  own  name,  we  answer, 
that  the  husband  will  be  deemed  her  trustee  ;  and  it  was  there- 
fore necessary  to  make  him  a  party  to  this  bill.     (2  Kent's 
Com.  \th  ed.  162,  and  note  (&,)  in  which  the  authorities  are  col- 
lected ;  also  2  Story's  Eq.  3d  ed.  §  1380,  and  note  3.) 

V.  As  to  the  objection  that  the  complainants  should  have 
resorted  to  the  assets  of  Vanderheyden,  in  the  hands  of  the  as- 
signee in  bankruptcy ;    we  answer,  1.    That  it  will  be  time 
enough  to  meet  that  question  when  it  shall  be  set  up  in  the 
defendants'  answer  and  proved  that  any  assets  were  transferred. 
2.  Vanderheyden  was  a  voluntary  applicant  and   must  have 
been  insolvent,  and  the  court  on  a  demurrer  to  the  bill  will  not 
presume  that  the  debt  may  have  been  satisfied  out  of  property 
in  the  assignee's  hands.     3.  As  this  debt  was  not  the  debt  of 
Vanderheyden,  (as  before  shown,)  it  is  questionable  whether 
the  complainants  would  have  a  right  to  claim  distribution  of 
any  assets  which  Vanderheyden  may  have  possessed.     They 
cannot  be  considered  as  creditors  of  Vanderheyden.     He  was 
never  their  debtor.     It  seems  clear,  therefore,  that  they  could 
not  come  in  for  distribution  if  there  were  any  effects  to  distri- 
bute.    (Bankrupt  act,  §  5.)     But  if  there  were  assets  of  Van- 
derheyden in  the  hands  of  the  assignee,  and  if  such  assets  could 
legally  be  applied  towards  this  demand,  it  would  be  more  equi- 
table to  leave  them  for  his  creditors,  and  require  the  complain- 
ants to  seek  satisfaction  for  their  demand  out  of  property  on  the 
faith  of  which  the  credit  was  obtained. 


462  CASES  IN  THE  COURT  OF  APPEALS. 


Vonderheydcn  r.  Mallory. 


JEWETT,  Ch.  J.  By  the  common  law  a  married  woman  is 
disabled  from  disposing  of  either  real  or  personal  estate  during 
the  marriage,  with  the  exception  of  the  former  by  fine,  and,  by 
our  law,  by  any  legal  conveyance  executed  under  a  due  exam 
ination  ;  and  of  the  latter  with  the  privity  and  concurrence  of 
her  husband.  That  being  the  legal  rule,  a  married  woman 
cannot,  at  law,  bind  herself  personally  by  any  contract  in  re 
gard  to  her  separate  property.  In  conformity  with  this  princi- 
ple courts  of  equity  hold  that  her  general  personal  engage- 
ments will  not  affect  her  separate  property.  And  to  this  extent 
courts  of  law  and  equity  act  in  concert.  But  as  a  conse- 
quence of  the  principle  established  that  a  married  woman 
may  take  and  enjoy  property  to  her  separate  use,  courts 
of  equity  enable  her  to  deal  with  it  as  a  feme  sole.  The 
right  of  disposition  or  appointment  is  an  incident  belonging 
to  such  interest  and  power.  She  may  sell,  pledge,  or  incumber 
her  separate  estate  when  she  shows  an  intention  so  to  dispose 
of  it,  in  the  same  manner  as  if  she  were  a  feme  sole,  unless  spe- 
cially restrained  by  the  instrument  under  which  she  acquires 
it ;  and  every  security  thereon  executed  by  her  is  to  be  deemed 
an  appointment  pro  tanto  of  the  separate  estate.  (Hulme  \. 
Tenant,  1  Brown's  Ch.  10 ;  Petteplace  v.  Gorges,  1  Ves.  jr. 
46  ;  2  Story's  Eq.  Jur.  §§  1392,  1399 ;  Jaqucs  v.  The  Meth- 
odist Epis.  Church,  17  John.  R.  519 ;  Gardner  v.  Gardner, 
22  Wend.  R.  52G.) 

The  great  difficulty  is,  to  ascertain  what  circumstances, 
in  the  absence  of  any  positive  expression  of  an  intention  to 
charge  her  separate  estate,  shall  be  deemed  sufficient  to 
create  such  a  charge,  and  what  sufficient  to  create  only  a 
general  debt.  But  it  is  agreed,  that  there  must  be  an  in- 
tention to  do  so,  otherwise  the  debt  will  not  affect  her  sepa- 
rate estate. 

The  fact  that  the  debt  has  been  contracted  by  a  woman  du- 
ring her  coverture,  either  as  a  principal  or  as  a  surety,  for  her 
self,  or  for  her  husband,  or  jointly  with  him,  seems  ordinarily 
o  be  held  prima  facie  evidence  to  charge  her  separate  estate 


SYRACUSE,  NOVEMBER,  1848.  453 


Vanderheyden  v.  Mallory. 


without  any  proof  of  a  positive  agreement  or  intention  so  to  do. 
(2  Story's  Eq.  Jur.  §  1400.) 

The  doctrine  of  appointment  or  appropriation  in  equity, 
however,  relates  wholly  to  engagements  made  or  debts  con- 
tracted by  a  married  woman,  as  such,  having  a  separate  estate, 
and  in  reference  to  it.  It  has  no  application  to  debts  contracted 
or  engagements  entered  into  by  a  feme  sole. 

The  bill  contains  no  allegation  that  Mrs.  Vanderheyden,  af- 
ter her  marriage  with  her  present  husband,  did  any  act  or  made 
any  engagement  with  or  promise  to  the  complainants  in  refer- 
ence to  their  debt  against  her  or  in  reference  to  her  separate 
estate,  other  than,  it  is  alleged,  that  soon  after  the  intermar- 
riage of  the  defendants  and  at  several  different  periods  subse 
quently,  one  of  the  complainants  made  application  to  them, 
urging  them  to  make  some  arrangement  by  which  the  appli 
cation  of  the  debt  due  to  the  complainants  from  said  Lenchy 
would  be  made  on  the  debt  which  they  owed  the  estate  of  Bradt 
in  the  hands  of  his  executor,  and  that  they,  until  about  the 
month  of  February,  1843,  constantly  upon  every  request  so 
made,  evinced  a  desire  to  have  an  arrangement  made  with 
the  executor  of  Bradt  by  which  such  application  would  be 
made,  and  that  they  agreed  that  such  an  arrangement  should 
be  made.  This  is  all  that  the  bill  contains  of  acts  charged 
upon  Mrs.  Vanderheyden  since  she  has  been  a  married  wo- 
man, to  sustain  a  claim  of  an  appointment  in  equity  by  her 
for  the  payment  of  the  complainants'  debt  out  of  her  separate 
estate  ;  and  this,  it  seems  to  me,  falls  far  short  of  bringing  the 
claim  within  any  principle  heretofore  established  in  equity. 
Even  if  Mrs.  Vanderheyden  had  contracted  the  debt  subsequently 
to  her  marriage  with  Vanderheyden,  the  facts  charged  expressly 
negative  the  idea  that  she  intended  to  pay,  or  that  the  com- 
plainants expected  to  be  paid,  their  debt,  out  of  what  is  now 
denominated  her  separate  estate.  The  allegation  in  that  re- 
spect is,  that  there  was  a  large  amount  due  to  her  from,  and 
that  she  had  a  claim  upon,  the  estate  of  her  late  husband, 
Bradt,  out  of  which  she  agreed  to  make  an  arrangement  with 
nis  executor  to  enable  the  complainants  to  have  applied  upon 


464     CASES  IN  THE  COURT  OF  APPEALS. 

Vandcrheydcn  v.  Mallory. 

the  debt  which  they  owed  Bradt  in  the  hands  of  his  executor, 
the  amount  of  the  debt  which  she  had  contracted  and  should 
contract  with  the  complainants,  and  that  the  complainants 
knowing  that  she  was  thus  entitled  and  would  have  abundant 
means  therefrom  to  pay  any  debt  she  might  contract  with  them 
credited  her.  It  is  nowhere  alleged  that  any  part  of  the 
amount  to  which  Mrs.  Vanderheyden  was  entitled  from  the 
estate  of  her  former  husband,  out  of  which  she  promised  to  pay. 
and  out  of  which  the  complainants  expected  to  be  paid  in  the 
manner  stated,  has  ever  come  to  her  hands.  For  any  thing 
appearing  in  the  bill,  the  same  remains  in  the  hands  of  Bradt'<< 
executor,  or  has  been  collected  and  received  by  Vanderheyden, 
or  if  not,  has  passed  to  the  assignee  in  his  proceedings  in  bank 
i  aptcy.  The  thirty-five  shares  of  bank  stock  was  owned  and 
held  by  her  from  1833  to  July,  1842,  when  it  was  formally 
transferred  to  her  for  her  separate  use.  The  residue  of  the 
stock  which  is  now  held  by  her  in  that  character  did  not  come 
from  the  estate  of  her  former  husband.  It  is  a  part  of  her  share 
bequeathed  to  her  by  her  father.  And  although  it  is  alleged 
that  Mrs.  Vanderheyden  now  holds  in  her  own  right  and  name 
u  large  amount  of  other  property,  it  is  not  averred  that  it  was 
all  or  any  portion  of  her  share  in,  or  claim  upon,  her  former 
husband's  estate,  in  the  hands  of  his  executor,  at  the  time  of 
the  accruing  of  her  indebtedness  to  the  complainants,  in  refer 
•Mice  to  which  exclusively,  she  when  sole,  and  she  and  her 
present  husband  since  their  intermarriage,  it  is  alleged,  so 
agreed  to  make  an  arrangement  respecting  the  payment  of  (he 
complainants'  debt.  Therefore  I  see  no  ground  stated  in  the 
oill,  which  would  authorixe  a  court  of  equity  to  subject  the 
separate  property  of  Mrs.  Vanderheyden  to  the  payment  of  the 
complainants'  debt  against  her.  There  is  nothing  which  gives 
countenance  to  the  idea,  that  she  ever,  either  before  or  since  her 
marriage,  made  any  contract  with  the  complainants  indicating 
any  intention  to  affect  by  it  the  property  which  she  now  holds 
to  her  separate  use  ;  but  on  the  contrary,  the  bill  expressly  neg- 
atives such  intention.  The  whole  dealing  and  contract,  as  well 
urior  as  subsequent  to  her  marriage,  referred  to  other  and  dif- 


SYRACUSE,  NOVEMBER,  1848.  455 


Vanderheyden  v.  Mallory. 


ferent  property  as  the  means  of  paying  the  debt  contracted  by 
her.  It  is  true,  that  prior  to  her  marriage  all  of  her  property 
was  liable  for  the  payment  of  this  debt  upon  a  judgment  and 
execution  against  her;  and  even  after  her  marriage  her  sepa- 
rate property  might  have  been  subjected  to  it  upon  a  judgment 
and  execution  against  her  and  her  husband,  if  the  transfer  of 
it  or  any  part  of  it  to  her  separate  use  was  fraudulent  as  against 
her  creditors ;  but  that  is  not  alleged,  and  of  course  no  decree 
at  any  time,  either  before  or  since  the  discharge  of  the  husband, 
could  be  made  subjecting  such  separate  property  to  the  payment 
of  the  debt  upon  that  ground. 

It  is  further  insisted  by  the  defendants  that  the  discharge  in 
bankruptcy  of  the  husband  operated  as  an  extinguishment  of 
the  debt  against  the  wife,  at  least  during  coverture.  It  is  ar- 
gued that  it  extinguished  the  husband's  liability  for  the  debt 
It  could  not  operate  to  extinguish  the  debt  as  against  the  wife, 
unless  it  was  the  husband's  debt  absolutely  and  exclusively. 
The  effect  of  the  discharge  is  to  extinguish  his,  not  her  debts. 
By  the  marriage,  the  law  cast  upon  the  husband  a  contingent 
and  temporary  liability  for  all  the  debts  and  demands  against 
the  wife  contracted  by  her  before  coverture,  if  sued  and  judg- 
ment recovered  against  both,  before  her  death,  but  not  after. 
If  the  wife  survive  her  husband,  her  sole  liability  revives.  She 
may  then  be  sued  upon  all  her  contracts  made  before  marriage, 
which  remain  unsatisfied.  The  husband's  liability  is  gone  by 
his  death,  and  no  liability  is  left  upon  his  representatives. 
(1  Chit.  PI.  44.) 

The  case  of  Miles  v.  Williams^  (IP.  Wms.  249,)  was  refer- 
red to  as  an  authority  to  show  that  the  debt  is  extinguished  by 
the  discharge,  as  well  against  the  wife  as  the  husband.  That 
was  an  action  of  debt  against  husband  and  wife,  upon  a  bond 
made  by  the  wife  dum  sola.  The  defendants  jointly  pleaded 
in  bar  the  discharge  of  the  husband  in  bankruptcy  after  the 
intermarriage,  to  which  the  plaintiff  demurred.  One  question 
was  whether,  it  being  debt  on  a  bond  given  by  the  wife  dum 
sola,  it  was  such  a  debt  as  should  be  discharged  by  the  bank- 
ruptcy of  the  husband  by  virtue  of  the  statute  4th  Ann,  ch.  17, 

VOL.  I.  59 


466  CASES  IN  THE  COURT  OF  APPEALS. 

Vanderlieyilen  r.  Mallory. 

mentioned  in  the  plea.  The  words  of  the  clause  upon  which 
it  depended  are,  "  that  the  bankrupt  shall  be  discharged  from 
all  debts  by  him  due  and  owing  at  the  time  he  became  bank- 
rupt ;"  and  then,  in  case  he  be  sued  for  any  such  debt,  the  act 
directs  "  that  he  shall  and  may  plead  in  general  that  the  cause 
of  action  did  accrue  before  he  became  bankrupt."  It  was  held 
that  it  was  the  husband's  debt  within  the  meaning  of  the  stat- 
ute, and  that  the  discharge  was  therefore  a  bar  to  the  action. 
And  as  to  the  wife,  it  was  said  that  it  was  a  discharge  as  to 
her,  at  least  a  temporary  one,  to  wit,  during  the  husband's  life ; 
and  the  chief  justice  added,  that  he  thought  it  would  amount 
to  a  perfect  release,  and  the  wife  would  be  discharged  forever. 
But  it  was  admitted  that  the  decision  of  that  case  did  not  call 
for  any  opinion  as  to  the  effect  of  the  discharge  upon  the  debt  in 
regard  to  the  wife. 

The  4th  section  of  the  United  States  bankrupt  act  of  Augus^ 
1841,  provides  that  every  bankrupt  who  shall  bonafide  surren- 
der all  his  property,"  &c.  shall  unless,  &c.  "  be  entitled  to  a  full 
discharge  from  all  his  debts,  to  be  decreed  and  allowed  by  the 
court  which  has  declared  him  a  bankrupt,  and  a  certificate 
thereof  granted  to  him  by  such  court  accordingly  upon  his  peti- 
tion filed  for  such  purpose."  "  Provided,  that  no  discharge  of 
any  bankrupt  under  this  act  shall  release  or  discharge  any  per- 
son who  may  be  liable  for  the  same  debt  as  a  partner,  joint 
contractor,  endorser,  surety  or  otherwise,  for  or  with  the  bank- 
rupt." And  again  ;  '•  And  such  discharge  and  certificate,  when 
duly  granted,  shall  in  all  courts  of  justice  be  deemed  a  full  and 
complete  discharge  of  all  debts,  contracts  and  other  engage- 
ments of  such  bankrupt,  which  are  proveablc  under  this  act,  and 
may  be  pleaded,"  etc. 

That  this  debt,  as  against  the  husband  in  his  proceedings  in 
bankruptcy,  was  proveablc,  admits  of  no  doubt ;  but  that  does  not 
necessarily  affect  the  question  whether  the  discharge  operated 
to  extinguish  the  debt  as  against  the  wife.  Unless  it  was  a 
debt  proveable  under  the  act,  the  husband  would  not  DC  dis- 
charged from  it,  for  the  discharge  as  to  him  only  operates  upon 
debts  of  that  character. 


SYRACUSE,  NOVEMBER,  1848.  457 

Vanderheyden  v.  Mallory. 

The  difficulty  in  holding  the  husband's  discharge  to  be  an  ex- 
tinguishment of  the  debt  absolutely,  is  raised  by  the  principle  that 
the  debt  existing  against  the  wife  before  coverture  is  not  trans 
ferred  from  her  to  the  husband  by  the  marriage.  The  legal  effect 
of  that  is  to  suspend  the  individual  liability  of  the  wife,  and  to 
create  and  cast  upon  the  husband  and  wife  a  joint  liability  for  the 
payment  of  the  debt,  to  continue  during  the  coverture  and  no 
longer,  unless  in  the  mean  time  judgment  shall  be  recovered 
against  them.  And  when  that  terminates  by  the  death  of  either, 
the  liability  thus  created  ceases  ;  and  if  the  wife  survive  her 
husband,  her  individual  liability  for  the  debt  revives,  unless  in- 
deed the  debt  is  paid,  released,  or  judgment  is  recovered  during 
the  coverture.  The  nature  of  the  debt  is  not  changed  by  mar- 
riage ;  that  is  only  done  by  the  recovery  of  a  judgment  against 
the  husband  and  wife.  It  then  becomes  the  debt  of  the  hus- 
band, and  may  be  enforced  against  him  and  his  property  after 
the  death  of  the  wife.  And  in  case  of  the  death  of  the  wife 
leaving  her  husband  surviving,  he  is  no  longer  liable  for  the 
debts  of  the  wife  contracted  by  her  before  marriage,  where  a 
judgment  has  not  been  recovered  :  but  he  as  her  administrator 
would  be  liable  for  such  debts  to  the  extent  of  the  assets  which 
he  should  receive,  if  he  took  administration  on  her  estate  to 
which  he  would  be  entitled  ;  and  if  he  should  not  take  admin- 
istration on  her  estate,  he  would  be  presumed  to  have  assets  in 
his  hands  sufficient  to  satisfy  her  debts,  and  would  be  liable 
therefor.  (1  R.  S.  75,  §  29 ;  2  Kent's  Com.  5tk  ed.  116,  411.) 
My  conclusion  is  that  the  husband's  discharge  operated  to  ex- 
tinguish his  liability  for  the  debt  of  the  wife,  and  would  be  a 
bar,  if  pleaded,  to  any  action  brought  against  him  and  his  wife, 
for  the  recovery  of  any  debt  contracted  by  her  before  their  mar- 
riage, and  to  suspend  the  remedy  for  the  recovery  of  such  debt 
as  against  the  wife  during  coverture. 

The  chancellor  did  not  (as  the  vice  chancellor  seems  to  have 
done)  place  his  decision  upon  the  doctrine  of  appointment  in  equi 
ty  by  the  wife  for  the  payment  of  the  debt,  but  upon  a  supposed 
equity  resulting  from  the  fact  that  the  husband's  liability  for  thf 
debt  had  been  extinguished  by  his  discharge  under  the  bank 


468     CASES  IN  THE  COURT  OF  APPEALS 

Vanderheyden  v.  Mallory. 


rupt  act,  and  the  complainants'  remedy  at  law  against  the  wife 
and  her  estate  suspended  during  coverture.  And  upon  this 
ground  the  chancellor  held  that  they  could  come  into  a  court  of 
equity  to  subject  her  separate  property  to  the  payment  of  their 
debt,  although  the  husband  is  still  living,  and  although  the  wife's 
separate  estate,  during  the  life  of  her  husband,  is  not  liable, 
generally,  for  debts  contracted  by  her  before  the  marriage.  The 
only  case  relied  on  by  the  chancellor  as  an  authority  for  his  de- 
cision is  the  case  of  Biscoe  v.  Kennedy,  (1  Brown's  R.  18,  n.) 
decided  at  the  rolls  in  1762,  which  was  this :  The  defendant, 
Jane  Kennedy,  when  a  feme  sole,  was  indebted  to  the  plaintiff, 
Biscoe,  in  £114,  by  bond,  22d  April,  1755,  and  was  possessed 
of  several  leasehold  houses  and  £1000  East  India  stock.  By 
settlement,  on  her  marriage  with  the  defendant  James  Kenne- 
dy, all  her  personal  estate  (excepting  £500  East  India  stock 
which  the  husband  was  to  have)  was  conveyed  to  the  defendant 
MacCollock,  in  trust  for  the  separate  use  of  the  defendant  Jane. 
The  marriage  having  taken  effect,  the  plaintiff  filed  his  bill 
(without  having  sued  the  husband)  to  have  the  separate  estate 
of  the  wife  applied  to  the  payment  of  the  debt ;  which  was  dis 
missed.  The  plaintiff  then  sued  out  writs  against  the  husband 
and  wife ;  but  the  husband  absconding,  could  not  be  served, 
and  the  plaintiff  proceeded  to  outlawry,  and  then  filed  the  bill 
to  be  paid  out  of  the  separate  estate  of  the  wife.  The  defen- 
dant insisted  that  during  her  husband's  life  her  separate  estate 
was  not  liable  to  this  debt,  contracted  by  her  while  sole.  The 
plaintiff  contended  that  the  settlement  was,  as  to  him,  fraudulent. 
The  master  of  the  rolls,  upon  the  hearing,  declared  that  upon 
the  circumstances  of  the  case  the  effects  of  the  defendant  vested 
in  her  trustee  were  to  be  considered  as  the  properly  of  a  feme 
sole,  and  ordered  the  plaintiff's  debt  and  costs  to  be  paid  out 
of  the  £500  East  India  stock  in  the  hands  of  her  trustee. 

The  declaration  that  the  property  vested  in  the  trustee  for 
the  use  of  the  wife  should  be  considered  as  the  property  of  a 
feme  sole,  was  in  accordance  with  well  settled  principles,  and 
in  regard  to  which  it  is  well  settled  that  she  is  to  be  treated  as 
&  feme  sole,  having  the  general  power  of  disposing  of  it,  but 


SYRACUSE,  NOVEMBER,  1848.  459 

Vanderheyden  v.  Mallory. 

without  capacity  to  charge  herself  personally.  But  upon  wha 
principle  the  decree  followed  that  the  debt  should  be  paid  ou* 
of  her  separate  property,  during  the  lifetime  of  her  husband,  ig 
not  clearly  stated,  and  cannot  with  any  certainty  be  ascertained 
from  the  statement  of  the  case  or  the  decision  of  the  court. 
The  ground  may  have  been  that  the  wife  was  deemed  to  be 
restored  to  her  capacity  as  a  feme  sole,  capable  of  suing  and 
being  sued  without  her  husband,  regarding  him  as  civilly  dead 
after  the  outlawry,  (2  Kenfs  Com.  154.  5th  ed. ;  2  Bac.  Abr. 
tit.  Baron  and  Feme,  M.  64  ;  Hyde  v.  Price,  3  Ves.jun.  444.) 
If  by  the  discharge  of  the  husband  in  bankruptcy,  an  equity 
is  created  against  the  wife,  to  subject  her  separate  property  to 
the  payment  of  the  debt  during  the  life  of  her  husband,  it 
would  be  difficult  to  give  a  good  reason  why  such  equity  would 
not  arise  in  every  case  where  such  creditor  had  exhausted  his 
remedy  against  the  husband  and  wife  at  law  and  in  equity 
without  satisfying  his  debt  by  reason  of  the  pecuniary  inability 
of  the  husband,  and  yet  it  has  not  as  yet  been  suggested  that 
such  equity  would  arise  in  that  case.  The  right  of  the  creditor 
to  be  paid  his  debt,  would  be  no  stronger  in  the  one  case  than 
in  the  other,  and  the  remedy  would  be  no  more  inadequate  to 
meet  the  justice  and  equity  of  the  case  in  the  one  than  in  the 
other.  By  the  decree  declaring  the  husband  a  bankrupt,  all 
the  property  and  rights  of  property  of  the  wife  to  which  the 
husband  became  entitled,  either  absolutely  or  qualifiedly.  by 
the  marriage,  undisposed  of  previously,  in  addition  to  his  other 
property,  by  operation  of  law  became  vested  in  the  assignee  in 
bankruptcy,  subject  to  the  wife's  right  by  survivorship ;  ( Van 
Epps  v.  Vaiideusen,  4  Paige.  73  ;  §  3  of  the  U.  S.  Bankrupt 
act  of  August,  1841 ;  Mitford  v.  Mitford,  9  Ves.  Jr.  87:)  in 
which  the  complainants  were  entitled  to  share  on  proving  their 
debt  pro  rata,  with  all  the  other  creditors  of  the  husband,  with 
certain  exceptions  specified  in  the  bankrupt  act.  (See  §  5.)  And 
this  is  the  remedy  given  by  law  to  the  creditors  of  a  bankrupt 
to  meet  the  equity  and  justice  of  their  case ;  and  for  any  thing 
alleged  in  the  bill,  the  complainants  might  have  realized  their 
entire  debt  if  they  had  pursued  this  remedy.  At  all  events,  if 


470  CASES  IN  THE  COURT  OF  APPEALS. 

Vandcrhcyden  r.  Mallory. 

they  refuse  or  neglect  this  remedy,  they  do  not  present  any 
very  high  claim  upon  a  court  of  equity,  to  alter  the  law  to  en- 
able them  to  have  applied  the  separate  property  of  the  wife,  to 
the  payment  of  their  debt,  in  advance  of  the  legal  period,  when 
it  might  be  so  subjected,  namely,  when  the  marriage  shall  be 
dissolved  by  the  death  of  either  husband  or  wife.  There  is  no 
remedy  for  the  wife  to  have  applied  any  portion  of  the  property 
which  passed  to  the  assignee  in  bankruptcy,  to  satisfy  the  com- 
plainants' debt.  But  they  have  such  remedy,  and  although 
they  have  a  remedy  upon  the  separate  property  of  the  wife  on 
the  termination  of  the  marriage  by  the  death  of  either  husband 
or  wife,  I  think  the  wife  has  a  strong  equity  against  the  com- 
plainants, requiring  them  to  assert  their  right  under  the  pro- 
ceedings in  bankruptcy. 

The  equity  which  the  chancellor  assumed,  as  arising  out  of 
the  husband's  discharge  in  bankruptcy,  in  this  case,  is  very 
nearly  akin  to  the  equity  which  prevailed  in  the  case  of  Free- 
man v.  Goodham,  (1  Cas.  in  Chan.  295.)  where  a  feme 
sole  bought  goods,  but  did  not  pay  for  them,  and  afterwards 
married  and  died,  having  brought  a  good  portion,  which  came 
to  the  hands  of  her  husband,  who,  on  the  creditor's  filing  a  bill 
against  him  to  be  paid  for  the  goods,  demurred  ;  and  when 
Lord  Chancellor  Nottingham  overruled  the  demurrer,  saying 
with  some  earnestness,  that  he  would  change  the  common  lait, 
in  that  point.  And  in  the  case  of  Powell  v.  Bell,  (Abr.  of  Cases 
in  Eq.  16  ;  Prc.  in  Chan.  256,)  where  it  was  decreed  that  the 
wife  who  had  contracted  debts  ditm  sola  being  dead,  the  hus- 
band should  account  for  what  he  had  received  with  her.  and 
should  be  so  far  liable  to  her  debts ;  it  being  insisted  that  one 
precedent  relieving  a  creditor,  was  more  to  be  regarded  than 
three  to  the  contrary.  But  these  cases  were  disregarded  or 
overruled,  and  the  principles  of  the  common  law  sustained  and 
applied  under  the  like  circumstances,  in  Earl  of  Thomard  v. 
Earl  of  Suffolk,  (1  P.  Wins.  470,)  and  in  Heard  v.  Stamford, 
(3  id.  409.)  The  last  case  was  this.  A  feme  sole  was  indebted 
to  her  sister  in  £50,  by  note.  She  married  and  brought  a  per- 
sonal estate  to  the  value  of  £700  to  her  husband,  with  whom 


SYRACUSE,  NOVEMBER,  1848.  471 

Vanderheyden  t>.  Mallory. 


she  lived  about  a  year  and  a  quarter,  and  then  died.  The  cred- 
itor by  note  never  recovered  judgment  against  the  husband  and 
wife,  and  the  debt  remained  unpaid.  The  husband,  on  the 
wife's  death,  administered  to  the  wife.  The  sister  married, 
and  with  her  husband  brought  a  bill  against  the  defendant, 
and  finding  that  the  choses  in  action  of  which  the  wife  died 
possessed  were  not  sufficient  to  pay  the  £50  debt  which  the 
wife  owed  dum  sola ;  it  was  prayed  that  the  defendant,  the 
husband,  for  so  much  as  he  had  received  out  of  the  clear  per- 
sonal estate  of  the  wife  upon  his  marriage,  should  be  made 
liable  to  answer  the  plaintiff's  demand.  And  it  was  insisted 
to  be  but  common  reason  and  justice,  that  as  the  wife  was  the 
owner  of  a  visible  estate  upon  the  credit  of  which  the  plaintiff 
might  have  entrusted  her ;  so  he  that  had  such  estate  should 
pay  the  debt,  which  he  might  well  afford  to  do  ;  that  it  would 
be  a  case  full  of  hardship,  if  a  feme  sole  who,  in  ready  money, 
goods,  jewels,  &c.  might  be  worth  £10,000,  and  might  owe 
£1000,  should  afterwards  marry  and  die,  that  on  her  death 
her  husband  should  go  away  with  the  £10,000,  and  not 
be  obliged  to  pay  one  farthing  of  his  wife's  debts.  This  would 
prove  of  the  most  pernicious  consequences  to  the  creditors : 
whereas,  on  the  other  hand,  the  husband  could  have  no  rea 
son  to  complain  of  being  liable  to  answer  their  demands,  as 
far  as  he  had  received  a  fortune  with  his  wife ;  and  the  cases 
of  Freeman  v.  Goodham  and  Powell  v.  Bell  were  cited  to  show 
that  such  equity  had  been  established  under  like  circumstances. 
But  Lord  Chancellor  Talbot  said  it  was  extremely  clear,  thai 
by  law  the  husband  was  liable  for  the  wife's  debts  only  during 
coverture,  unless  the  creditor  recover  judgment  against  him 
in  the  wife's  lifetime ;  and  that  he  did  not  see  how  any 
thing  less  than  an  act  of  parliament  could  alter  the  lawr ;  that 
the  wife's  choses  in  action  were  assets,  and  would  be  liable,  but 
they,  it  seemed,  were  not  sufficient  in  the  principal  case  to  an- 
swer the  demands  ;  that  in  the  case  of  Freeman  v.  Goodham 
there  was  some  reason  for  the  court  to  be  provoked,  when  the 
goods  themselves  continued,  after  the  death  of  the  wife,  in  the 
hands  of  the  husband,  who  notwithstanding  refused  to  pay  foi 


^72     CASES  IN  THE  COURT  OF  APPEALS. 

Vandcrheyden  r.  Mallory. 

them.  If  he  relieved  against  the  husband  because  he  had  suf- 
ficient with  his  wife  wherewith  to  satisfy  the  demand  in  ques- 
tion ;  by  the  same  reason,  where  a  feme  indebted  dum  sola 
afterwards  marries,  bringing  no  fortune  to  her  husband,  and 
judgment  is  recovered  against  the  husband,  after  which  the 
wife  dies,  he  ought  to  grant  relief  to  the  husband  against  such 
judgment,  which  he  said  was  not  in  his  power ;  consequently 
there  could  be  no  ground  for  a  court  of  equity  to  interpose  in 
the  case  before  him ;  that  if  the  law,  as  it  then  stood,  be 
thought  inconvenient,  it  would  be  a  good  reason  for  the  legis- 
lature to  alter  it ;  but  till  that  was  done,  what  was  then  law 
must  take  place.  The  remarks  of  the  lord  chancellor  in  that 
case  may  well  be  applied  to  the  circumstances  of  this  case. 

It  is  extemely  clear,  that  by  law  the  wife,  or  her  separate 
property,  are  not  liable  for  the  debts  which  she  owed  dum  sola, 
during  the  life  of  her  husband  ;  and  I  do  not  see  how  any  thing 
less  than  an  act  of  the  legislature  can  change  the  law.  And 
from  the  circumstances  of  this  case,  I  do  not  discover  any  rea- 
son even,  for  the  court  to  be  provoked  on  account  of  the  exist 
ence  of  such  rule  of  law ;  as  it  seems  that  the  wife  carried  to 
the  husband  a  large  personal  estate  irrespective  of  her  separate 
property,  the  same  to  which  she  was  entitled  and  which  in 
duced  the  complainants  to  give  her  the  credit,  and  that  nearly 
five  years  elapsed  after  the  marriage,  before  the  husband  ap- 
plied to  be  decreed  a  bankrupt,  during  which  period  it,  is  fair 
to  presume  the  complainants  might  have  collected  their  debt, 
by  proceedings  against  the  husband  and  wife,  out  of  the  prop 
erty  which  the  husband  received  or  might  have  received  by  tin- 
marriage,  and  which  has  passed  to  the  assignee  in  bankruptcy  : 
and  even  there,  the  complainants  have  neglected  to  go  for  their 
share  of  it.  Upon  the  whole,  I  think  the  decree  of  the  vice 
chancellor,  and  the  affirmance  of  it  by  the  chancellor,  were  cr 
roneous,  that  it  should  be  reversed,  and  the  complainants'  bill 
be  dismissed  with  costs. 

Ordered  accordingly. 


SYRACUSE,  NOVEMBER,  1848.  473 


Martin  v.  Martin. 


MARY  MARTIN,  by  Joseph  Dean  her  next  friend,  appellant,   -   — ^g — 
vs.  NORRIS  L.  MARTIN,  respondent.  47         H69 

Where  real  estate  was  purchased  and  paid  for  in  part  with  the  money  or  funds  of 
the  husband,  and  with  his  assent  the  conveyance  was  taken  to  a  trustee  who 
simultaneously  gave  a  mortgage  on  the  estate  for  the  residue  of  the  purchase  mo- 
ney, and  also  with  the  husband's  assent  executed  a  declaration  of  trust  to  the 
effect  that  the  premises  were  held  to  the  sole  and  separate  use  of  the  wife,  subject 
to  the  mortgage ;  held,  the  rights  of  creditors  not  being  in  question,  that  the  decla- 
ration of  trust  was  valid  and  binding  upon  the  husband,  and  that  the  husband  had 
no  interest  in  such  estate. 

Where  real  estate  of  a  wife  which  is  held  subject  to  the  marital  rights  of  her  hus- 
band is  sold,  the  proceeds  of  such  sale,  being  money  or  personal  property,  belong 
to  the  husband,  subject  only  to  the  equitable  right  of  the  wife  to  a  support  there- 
from ;  and  equity  will  not  interpose  in  such  a  case  in  her  favor,  where  suitable 
provision  is  otherwise  made  for  her,  or  where  she  is  living  in  a  state  of  unjustifia- 
ble separation  from  her  husband. 

Accordingly,  where  the  wife  owned  a  dower  interest  in  four-sixths  of  certain  real 
estate  of  which  her  former  husband  died  seized,  and  owned  in  fee  the  remaining 
two-sixths,  and  the  husband  and  wife  united  in  a  sale,  and  out  of  the  proceeds  of 
such  sale  the  sum  of  $3000  was  paid,  without  the  husband's  assent,  upon  a  mort- 
gage which  encumbered  the  wife's  separate  estate;  held,  that  the  husband  had  a 
claim  upon  such  separate  estate  to  that  extent. 

But  another  sum  of  $2000  out  of  such  proceeds  appearing  to  have  been  paid  upon 
the  same  mortgage  with  the  husband's  unqualified  assent ;  held,  that  such  pay- 
ment was  a  valid  appropriation  of  that  sum  to  the  wife's  separate  use,  and  that  in 
respect  to  it  the  husband  had  no  claim  upon  the  separate  estate. 

APPEAL  from  chancery.  The  bill  in  this  cause  was  filed 
before  the  vice  chancellor  of  the  first  circuit,  by  Mary  Martin 
against  her  husband  Norris  L.  Martin,  and  Samuel  Richards 
her  trustee.  The  assistant  vice  chancellor  of  that  circuit,  be- 
fore whom  the  cause  was  heard  on  pleadings  and  proofs,  made 
a  decree  which  was  modified  by  the  chancellor  on  appeal  to 
him.  By  one  of  the  provisions  of  the  decree  as  so  modified,  the 
husband  was  declared  to  have  a  lien  upon  the  real  estate  which 
was  the  subject  of  the  controversy,  to  the  amount  of  $5000  and 
interest  thereon,  which  had  been  paid  in  two  sums  of  $2000 
and  $3000,  upon  a  mortgage  encumbering  the  premises,  Mrs. 

VOL.  I.  60 


474     CASES  IN  THE  COURT  OF  APPEALS. 


Martin  r.  Marlin. 


Martin  appealed  to  this  court.     The  material  facts  are  stated  in 
the  opinion  of  the  court  as  delivered  by  WRIGHT,  J. 

D.  D.  Field,  for  the  appellant. 
H.  B.  Duryea,  for  the  respondent. 

WRIGHT,  J.  The  bill  in  this  cause  was  filed  in  the  court 
of  chancery  to  restrain  the  respondent  from  controlling  or  inter- 
fering in  any  way,  with  certain  real  estate  alleged  to  be  held 
in  trust  by  one  Samuel  Richards,  as  the  sole  and  exclusive 
property  of  Mrs.  Martin,  the  appellant;  also,  to  remove  Rich- 
ards from  such  trust,  and  to  appoint  a  new  trustee  in  his  place 
under  the  sanction  and  authority  of  that  court ;  with  the  fur- 
ther prayer  that,  in  the  mean  time,  a  receiver  of  the  rents,  issues 
and  profits  of  such  real  estate  might  be  appointed,  and  such 
rents,  issues  and  profits  appropriated  and  paid  to  the  now  appel- 
lant. Richards  was  originally  made  a  party  defendant  to  the 
suit. 

The  case  is  one  exclusively  between  husband  and  wife ;  for, 
although  it  is  apparent  from  the  evidence,  that  at  the  time  of 
the  purchase  of  the  properly  which  is  the  subject  of  controversy, 
and  subsequently,  the  respondent  was  insolvent,  no  question 
affecting  the  rights  of  creditors  arises.  There  are  two  principal 
and  leading  questions  in  the  case.  1st.  Is  the  subject  matter 
of  the  controversy  the  separate  and  exclusive  property  of  the 
appellant?  2d.  What  are  the  rights  of  the  parties  in  the  prop- 
erty arising  from  transactions  subsequent  to  (he  creation  of  the 
alleged  trust?  When  the  bill  was  filed  the  appellant  had  left 
her  husband,  and  was  living  separate  from  him  ;  but  the  proof 
fails,  although  an  apparently  strenuous  effort  was  made  on 
that  point,  to  establish  such  a  case  of  cruel  treatment  by  the 
husband,  as,  for  that  reason,  to  justify  the  separation,  and  to 
call  for  the  particular  interposition  of  the  court  of  chancery  in 
the  appellant's  behalf.  Conduct,  it.  is  true,  was  shown,  incon- 
sistent with  good  manners  or  an  affectionate  regard  for  the  feel 
'ngs  of  a  wife ;  but  there  was  no  proof  ot  violence,  or  other 


SYRACUSE,  NOVEMBER,  1  *48.  475 


Martin  v.  Martin. 


manifestations  of  cruelty,  rendering  it  unsafe  for  her  to  cohabit 
with  him.  The  evidence  fell  short  of  what  courts  of  equity  have 
regarded  as  an  excuse  for  a  wife  leaving  her  husband  in  disre- 
gard of  her  marriage  vows.  Still,  it  may  be  remarked,  that 
although  living  apart  from  the  respondent,  no  allegation  was 
set  up  of  unchasteness  or  immorality  on  the  part  of  the  appel- 
lant ;  nor  any  attempt  made  to  impeach  the  purity  of  her  char- 
acter and  morals. 

The  evidence  shows  that  on  the  9th  of  December,  1829,  pur- 
suant to  an  agreement  fully  understood  by  the  parties  to  this 
suit,  John  Haggerty  and  wife  conveyed  the  premises  in  ques- 
tion (being  a  farm  on  Long  Island)  to  Samuel  Richards.  Mr. 
Haggerty  testifies  that  both  the  parties  (Mr.  and  Mrs.  Martin) 
conducted  the  negotiation  with  him  for  the  purchase  of  the  farm, 
and  he  understood  from  both  of  them  that  it  was  purchased  foi 
her  exclusive  use  and  benefit,  with  her  means,  and  that  she 
might  have  a  place  as  her  home  from  which  she  might  not  be 
disturbed.  The  purchase  money  agreed  to  be  paid  was  twelve 
thousand  dollars.  Of  this  sum,  three  thousand  dollars  was  paid 
at  the  execution  of  the  deed,  by  the  transfer  to  and  acceptance 
by  Haggerty  of  a  mortgage  for  that  amount  held  by  the  respou 
dent  on  certain  Brooklyn  lots  ;  and  the  balance  was  secured  by 
bond  and  mortgage  of  Richards  upon  the  premises.  Whelhej 
this  sum  of  three  thousand  dollars  was  the  proceeds  of  the  prop- 
erty of  the  wife  or  the  husband  appears  to  have  been  made  a 
question  in  the  court  below;  but  it  was  scarcely  alluded  to  in 
the  argument  before  us ;  and  it  is  quite  clear  that  in  either 
view  the  rights  of  the  parties  would  not  be  changed.  The 
mortgage  was  transferred,  and  the  payment  made,  by  the  act 
and  consent  of  the  husband  ;  and  if  it  were  the  absolute  prop- 
erty of  the  husband,  so  long  as  creditors  did  not  interfere,  he 
had  the  right  to  settle  it  upon  his  wife  for  her  sole  and  sepa- 
rate use. 

Simultaneously  with  the  execution  of  the  deed  from  Haggerty 
to  Richards,  a  declaration  of  trust  was  executed  by  Richaids. 
This  instrument  recited  that  Richards,  at  the  request  of  the 
appellant,  had  consented  to  become  trustee  of  the  lands  con- 


476     CASES  IN  THE  COURT  OF  APPEALS. 


Martin  v.  Martin. 


veyed  to  him  by  Haggerty,  and  which  conveyance  from  Hag- 
gerty  was  to  be  contemporaneous  with  it ;  that  three  thousand 
dollars  of  the  trust  moneys  had  been  appropriated  for  the  pay- 
ment of  so  much  of  the  purchase  money  of  the  land,  and  the 
residue,  amounting  to  nine  thousand  dollars,  was  to  be  secured 
by  bond  and  mortgage ;  that  the  appellant  had  required  that 
a  declaration  of  trust  should  be  executed,  and  that  the  instru- 
ment had  been  drawn  for  such  purpose.  The  trusts  declared 
by  the  instrument  were,  1st.  To  indemnify  Richards,  his  heirs, 
executors  and  administrators,  from  and  against  the  bond  and 
mortgage  executed  by  him  for  securing  the  balance  of  the  pur- 
chase money,  and  all  payments  of  principal  and  interest  thereon ; 
for  the  purpose  of  which  indemnity.  Richards,  his  heirs,  execu- 
tors, administrators  and  assigns,  were  empowered  to  sell  the 
premises  or  any  part  thereof,  or  mortgage  or  demise  the  same, 
as  he  or  they  should  think  fit,  and  apply  the  proceeds  thereof 
to  such  indemnity.  2d.  Being  kept  indemnified,  that  Richards, 
his  heirs  and  assigns,  at  the  election,  from  time  to  time,  of  Mrs. 
Martin,  and  during  her  lifetime,  should  permit  her  and  her 
family  to  occupy  the  premises,  or  receive  the  rents,  issues  and 
profits  thereof,  to  her  sole  and  separate  use,  to  he  paid  on  her 
sole  and  separate  receipt,  and  to  be  accounted  to  her  solely  and 
separately,  and  to  be  free  from  the  debts,  contracts,  and  inter- 
ference of  her  husband,  present  and  future.  '3d.  Being  indem- 
nified as  aforesaid,  Richards,  his  heirs  and  assigns,  should,  upon 
the  request  in  writing  of  Mrs.  Martin,  witnessed  by  one  witness, 
convey  unto  such  person  or  persons,  and  for  such  prices,  and 
upon  such  terms  as  she  should  think  fit,  all  and  singular  such 
premise!!,  and  give  receipts  and  acquittances  for  the  purchase 
money  thereof,  which  should  fully  discharge  the  purchaser  or 
purchasers  fur  the  price  expressed  therein  to  be  paid  by  them. 
4th.  That  on  the  death  of  Mrs.  Martin.  Richards,  his  heirs,  ex- 
ecutors and  assigns,  being  indemnified,  should  convey  the  prem- 
ises unto  such  person  or  persons,  in  such  estates,  and  upon  such 
uses  and  trusts,  as  Mrs.  Martin  should  by  writing  in  the  nature 
of  a  will  appoint,  declare  and  direct;  and  in  case  no  such  instru- 
ment should  exist  at  the  time  of  her  decease,  then  to  convej 


SYRACUSE,  NOVEMBER,  1848.  477 

Martin  v.  Martin. 

the  premises  unto  the  heirs  at  law  of  Mrs.  Martin,  in  the  same 
shares,  proportions,  and  estates,  as  if  she  had  survived  her 
husband. 

About  the  time  the  purchase  was  made,  and  the  declaration 
of  trust  given,  the  appellant  went  into  the  occupation  of  the 
premises,  and,  the  proof  shows,  continued  to  principally  manage 
and  control  them  until  1838.  The  respondent,  who  appears  to 
have  been  pursuing  no  regular  employment  or  business,  and 
who  was  evidently  without  means,  except  what  should  be  de- 
rived from  his  wife's  property,  also  resided  upon  the  premises, 
and  although  he  superintended  the  improvement  of  them, 
whilst  she  continued  in  their  occupation,  he  uniformly  treated 
them  as  the  exclusive  property  of  his  wife,  taking  receipts  for 
labor  performed  thereon  in  her  name,  and  consulting  her  in  re- 
lation to  renting  a  portion  of  them.  There  can  be  no  doubt, 
also,  from  the  admissions  of  the  respondent  in  his  answer,  and 
the  evidence,  that  he  understood  fully  the  purport,  contents  and 
effect  of  the  declaration  of  trust.  He  was  in  no  respect  deceived, 
as  he  was  the  principal  actor  in  obtaining  it.  His  object  clearly 
then  was,  as  he  stated  to  Haggerty,  to  secure  a  home  for  his 
wife,  by  her  means,  (a  great  deal  of  which  had  already  been 
wasted,)  and  thereby  secure  one  for  himself.  The  declaration 
of  trust  was  in  his  hand-writing,  and  he  presented  it  to  Richards 
for  execution.  It  was  executed  and  acknowledged  by  Rich- 
ards, and  delivered  to  the  respondent,  not  conditionally,  or  as 
an  escrow,  but  absolutely  for  the  use  of  the  wife,  in  furtherance 
of  the  original  design  of  the  parties  as  stated  to  Haggerty. 
This  was  an  effectual  delivery  to  vest  in  Mrs.  Martin  the  rights 
declared  by  the  instrument,  and  to  divest  the  respondent  of  any 
equitable  title  in  the  property.  It  is  alleged  in  the  answer, 
that  the  declaration  of  trust  was,  without  the  respondent's  con- 
sent or  knowledge,  placed  upon  record  ;  but  whether  it  was  or 
not,  could  not  alter  or  affect  the  rights  of  Mrs.  Martin  acquired 
thereunder.  It  became  operative  from  its  execution  by  Rich- 
ards and  delivery  to  the  husband  for  her  use. 

There  is,  therefore,  no  difficulty  in  determining  the  first 
question  presented  by  the  case.  The  subject  matter  of  the 


478     CASES  IN  THE  COURT  OF  APPEALS. 


Martin  v.  Martin. 


controversy  is,  so  far  as  the  respondent  is  concerned,  the  sole 
and  separate  property  of  the  appellant,  and,  as  against  him, 
she  is  entitled  to  the  sole  and  exclusive  use,  and  the  rents,  is- 
sues and  profits  thereof.  Being  indemnified  against  the  prin- 
cipal and  interest  due  or  to  become  due  on  the  mortgage  given 
by  him,  it  was  the  duty  of  the  trustee  to  allow  her  to  occupy 
the  premises,  or  to  receive  exclusively  the  rents,  issues  and 
profits  thereof,  free  from  the  debts,  contracts  or  interference  of 
her  husband.  The  husband  had  no  interest  therein  ;  and  it  is 
obvious  that  he  did  not  design  to  have  any  that  might  be 
reached  by  creditors.  Indeed,  on  the  argument  the  ground 
was  in  effect  abandoned  that  as  between  the  parties  to  this  liti- 
gation the  trust  was  not  a  valid  one,  and  the  farm,  prior  to 
the  payment  of  the  surn  of  five  thousand  dollars  on  the  mort- 
gage given  by  Richards,  the  sole  and  separate  property  of  the 
wife  ;  for  the  entire  argument  of  the  counsel  for  the  respondent 
related  to  his  client's  equitable  rights  in  the  property,  growing 
out  of  transactions  subsequent  to  the  creation  of  the  trust,  and 
some  three  years  after  the  appellant  had  entered  into  the  use 
and  occupation  of  the  premises  under  it. 

2.  Do  transactions  subsequent  to  the  creation  of  the  trust 
give  to  the  respondents  any  equitable  rights  in  the  property  ? 
This  question  is  more  difficult  of  solution  than  the  first ;  and 
this  difficulty  mainly  arises  from  the  loose,  imperfect  and  un- 
satisfactory manner  in  which  the  facts  of  the  case  are  presented. 
We  have  a  massive  volume  before  us.  the  minutest  proportion 
of  which  bears  upon  the  question.  Certain  facts,  however,  are 
proved,  and  some  others  are  admitted,  that  may  enable  us  to 
arrive  at  a  pretty  satisfactory  conclusion.  It  appears  that  in 
May.  1832,  more  than  two  years  after  the  purchase  of  the  prop- 
erty and  the  creation  of  the  trust,  and  whilst  Mr.  and  Mrs. 
Martin  were  living  thereon,  and  paying  semi-annually  the  in- 
terest on  the  mortgage  of  isOOOO  given  by  Richards,  and  appa- 
rently using  and  enjoying  the  property  without  any  control  or 
intervention  of  the  trustee,  Edward  G.  Miller,  a  son  of  the  ap- 
pellant, paid  to  Haggerty,  in  two  several  payments,  one  of 
and  the  other  of  $3000,  the  sum  of  §5000,  in  part  pay 


SYRACUSE,  NOVEMBER,  1848.  479 


Martin  v.  Martin. 


inent  of  the  bond  and  mortgage  of  $9000  which  Haggerty  held 
on  the  property.  It  was  admitted  on  the  argument  that  this 
sum  of  $5000  was  realized  from  the  sale  of  the  appellant's  in- 
terest in  certain  real  estate  in  the  city  of  New- York,  formerly 
belonging  to  a  deceased  husband,  which  interest  consisted  of  a 
dower  right  in  four-sixths  thereof,  and  a  fee  in  the  remaining 
two-sixths.  That  the  respondent  knew  of  the  sale  of  this  New- 
York  property  to  Edward  G.  Miller,  and  that  he  made  no  de- 
mand on  the  latter  for  the  proceeds  prior  or  subsequent  to  the 
payment  in  1832  to  Haggerty,  and  that  he  knew  of  the  payment 
about  the  time  it  was  made,  is  quite  apparent ;  for  he  was  a 
party  with  his  wife  to  a  deed  executed  to  Miller  in  1830,  for  a  part 
of  the  property,  and  from  the  fact  of  his  ordinarily  paying  the  in- 
terest as  it  fell  due  on  the  Haggerty  mortgage,  (which  interest 
was  payable  semi-annually,)  he  must  have  known  that  the 
mortgage  was  reduced  to  $4000,  within  six  months  at  least 
after  the  payment  had  been  made.  In  this  interest  of  the  ap- 
pellant in  the  New- York  property,  the  respondent  Martin  had 
a  life  estate  subject  to  the  equity  of  the  wife  for  a  sufficient 
settlement  out  of  the  dower  fund,  provided  such  settlement  had 
not  been  made  under  the  trust  deed,  or  in  some  other  way.  At 
the  time  of  the  sale  and  the  payment  of  this  sum  of  $5000  to 
Haggerty,  the  respondent  was  in  law  entitled  to  receive  the  in- 
come of  such  sum,  and  had  he  brought  his  action  at  law  to 
maintain  his  marital  rights,  a  court  of  chancery  would  not 
have  interfered,  unless  he  had  deserted  his  wife,  or  neglected 
to  provide  for  her,  and  the  income  of  the  dower  fund  \vas  abso- 
lutely required  for  her  maintenance  and  support.  It  is  clear, 
then,  that  the  proceeds  of  the  interest  of  the  appellant  in  the 
New- York  property,  could  not  be  legally  used  to  proportionably 
discharge  an  incumbrance  on  the  wife's  separate  property,  and 
thus  divest  the  respondent  of  all  interest  therein  without  his 
acquiescence,  or  some  agreement  on  his  part  to  that  effect. 
That  he  might  acquiesce  in,  or  agree  to  an  appropriation  which 
forever  afterwards  would  estop  him  from  setting  up  any  claim 
growing  out  of  his  marital  rights,  is  quite  manifest. 

The  counsel  for  the  appellant  contends  that  the  respondent 


480  CASES  IN  THE  COURT  OF  APPEALS. 


Martin  v.  Martin. 


agreed  to  the  appropriation  made  by  Miller  of  the  &5000  in 
part  liquidation  of  the  Haggerty  mortgage  ;  or,  at  least,  that  he 
acquiesced  in  such  appropriation  subsequently  to  its  being  made, 
which  was  equivalent  to  a  previous  agreement.  His  conduct 
certainly  was  unlike  that  of  a  person  who  contemplated  setting 
up  a  claim  to  any  part  of  the  proceeds  of  the  New- York  prop- 
erty coming  through  his  wife.  He  knew  of  the  sale,  and  that 
(he  proceeds  were  in  the  hands  of  Miller,  yet  he  suffered  them 
to  remain  there,  making  no  claim  by  virtue  of  his  marital  rights. 
He  certainly  knew  of  the  appropriation  shortly  after  it  had  beer 
made,  if  he  did  not  at  the  time,  yet  he  made  no  objection  to  it. 
He  never  called  on  Miller  for  any  explanation  of  the  matter. 
He  made  no  claim  to  the  land  on  account  of  the  payment.  In 
1834,  two  years  after  the  payment,  and  when  he  must  have 
known  the  precise  state  which  the  trust  property  was  in,  he 
accepted  a  deed  of  appointment  from  his  wife  of  an  estate  for 
life  in  the  premises,  to  commence  at  her  death,  in  which  deed 
the  trusts  showing  that  the  property  was  held  for  her  sole  and 
separate  use,  were  recited.  Neither  at  the  time  this  appoint- 
ment was  accepted,  nor  in  his  answer,  did  he  make  any  claim 
lo  the  proceeds  of  the  appellant's  interest  in  the  New-York  prop- 
erty, nor  pretend  that  it  was  not  agreed  to  be  his  wife's,  and  to 
be  considered  as  a  part  of  her  separate  estate.  But  it  is  urged, 
on  the  other  hand,  that  he  made  no  claim,  or  set  on  foot  any 
proceedings  to  assert  his  rights  in  the  estate  derived  from  his 
xvife,  for  the  reason  that  he  was  in  common  with  her,  in  the 
use  and  enjoyment  of  the  farm  on  Long  Island,  and  was  always 
in  the  expectation  of  obtaining'  from  her  an  appointment  that 
would  secure  to  him  a  jointure  in  it ;  and  that  if  he  is  now  com- 
pelled to  relinquish  the  use  and  enjoyment  of  the  premises,  and 
be  disappointed  in  his  expectations  of  obtaining  an  interest 
therein,  his  acts  ought  not  to  be  regarded  as  an  acquiescence 
in  the  appropriation  for  .such  purposes.  I  think  there  is  force 
in  this  argument  in  respect  to  $3000,  parcel  of  the  sum  realized 
from  the  appellant's  real  estate  in  'Jie  city  of  New-York  ;  but 
none  as  to  the  additional  $2000  of  that  sum.  The  respondent 
admits  in  his  answer,  that  at  the  time  of  the  purchase  of  the 


SYRACUSE,  NOVEMBER,  1848.  43  j 


Martin  v.  Martin. 


Long  Island  farm,  it  was  contemplated  and  agreed  on  his  part, 
that  the  first  payment  on  the  Haggerty  mortgage,  which  was 
the  sum  of  $2000,  to  become  due  in  two  years  from  the  date  of 
the  purchase,  should  be  made  out  of  the  proceeds  of  the  appel- 
lant's interest  in  the  New- York  property,  and  that  he  so  in- 
formed Richards  at  the  time  of  the  execution  of  the  declaration 
of  trust.  He  had  therefore  agreed,  prior  to  the  execution  of  the 
trust  deed,  which  was  to  give  to  his  wife  the  separate  estate, 
that  $2000  of  the  proceeds  of  her  property  should  go  to  propor- 
tion ably  discharge  the  purchase  money,  and  with  this  agree- 
ment fully  understood,  and  in  view  of  its  effectual  consummation, 
the  declaration  of  trust  was  executed  and  delivered  to  the  re- 
spondent. I  find  it  nowhere  expressly  alleged  or  set  up  in  the 
answer,  that  this  agreement  was  a  conditional  one,  only  to 
operate  in  the  event  of  the  respondent's  obtaining  an  interest 
in  the  premises  ;  and  his  subsequent  acquiescence  in  the  pay- 
ment of  the  sum  contemplated  by  the  agreement,  must  be  con- 
sidered as  an  indication  of  an  intention  not  to  avoid  it.  About 
the  period  that  the  sum  of  $2000  fell  due  on  the  Haggerty 
mortgage,  it  was  paid,  and  it  is  to  be  inferred  from  the  respon- 
dent's admissions  and  the  facts  proved  in  the  case,  with  his 
assent.  There  would  be  no  equity,  therefore,  as  against  the 
appellant,  to  revive  a  right  in  the  respondent's  behalf  that  he 
evidently  assented  to  part  with  absolutely.  But  with  regard 
to  the  further  amount  of  $3000  paid  on  the  Haggerty  mortgage 
before  it  fell  due,  there  is  no  admission  of  the  respondent  of  an 
assent  or  agreement  on  his  part  that  the  payment  should  be 
made  from  funds  realized  by  a  sale  of  the  appellant's  property. 
Indeed,  it  is  expressly  alleged  in  the  answer  of  Martin,  that  the 
balance  of  the  mortgage,  after  the  first  payment  of  $2000  had 
been  made,  was  to  be  paid  by  the  respondent  himself  out  of 
certain  moneys  expected  to  be  received  by  him  from  the  corpo- 
ration of  the  city  of  Brooklyn.  It  is  true  that  there  was  an 
apparent  acquiescence  of  more  than  six  years  in  the  specific 
appropriation  of  the  money  by  Miller;  but  this  was,  as  has  been 
urged,  whilst  the  respondent  was  in  the  enjoyment  of  the  prop 
erty,  and  whilst  he  hoped  and  expected,  by  the  act  of  the  wife, 
VOL.  I.  61 


482  CASES  IN  THE  COURT  OF  APPEALS. 

Martin  v.  Martin. 

to  obtain  a  legal  interest  therein.  Had  the  appellant  imme- 
diately on  the  execution  of  the  trust  deed,  strictly  asserted  her 
rights  thereunder  as  against  the  respondent,  and  the  latter  had, 
for  more  than  six  years,  quietly  acquiesced  in  the  appropriation 
of  the  $3000  for  the  discharge  of  the  mortgage,  there  would 
have  been  good  reason  for  inferring  an  assent  on  his  part  to  the 
appropriation  for  the  absolute  benefit  of  the  wife  ;  but  I  cannot 
arrive  at  the  conclusion  under  the  facts  of  this  case,  that  the 
husband  would  at  any  time  have  consented  that  his  whole 
marital  interest  in  his  wife's  real  estate  in  New- York,  should 
go  to  the  discharge  of  an  incumbrance  on  her  separate  property, 
whilst  he  was  excluded  from  any  enjoyment  thereof,  or  any 
expectation  of  an  interest  therein.  To  my  mind  the  facts  of 
the  case  do  not  present  such  a  case  of  acquiescence  in  the  ap- 
propriation of  the  $3000,  as  to  exclude  the  respondent  from 
setting  up  any  claim  to  an  interest  in  that  sum  in  the  event  of 
giving  full  effect  to  the  declaration  of  trust. 

The  appellant  now  asks  that  effect  may  be  given  to  that 
declaration  ;  that  the  respondent  may  be  restrained  from  inter- 
fering with  the  property  ;  and  the  rents,  issues  and  profits  there- 
of may  be  appropriated  and  paid  to  her  exclusively.  The 
$3000  has  gone  into  the  land  ;  it  is  but  just  and  equitable, 
therefore,  that  he  should  have  a  lien  thereon  to  that  extent,  so 
as  to  entitle  him  to  receive  such  sum,  subject  to  the  balance 
due  upon  the  mortgage  to  Haggerty,  which  should  be  first  paid. 
I  should  desire  much  to  save  for  the  appellant  the  whole  of  the 
interest  in  the  Long  Island  farm,  after  the  discharge  of  the 
mortgage.  It  appears  that  it  is  all  that  is  left  to  her  of  a  con- 
siderable fortune  brought  to  a  husband  who  is  now  insolvent. 
But  it  cannot  be  done  consistently  with  a  due  regard  for  the 
rights  of  the  respondent. 

Several  minor  questions,  affecting  to  some  extent  the  rights 
of  the  respective  parties,  were  raised  during  the  progress  of  the 
case  ;  but  coinciding  fully  with  the  views  of  the  chancellor  re- 
specting them,  I  have  intentionally  refrained  from  their  dis- 
cussion. 

I  am  of  the  opinion  that  the  decree  of  the  chancellor  should 


SYRACUSE,  NOVEMBER,  1848.  433 

Harvey  ».  Olmsted. 

be  modified  so  as  to  strike  therefrom  the  words  "five  thousand 
dollars,"  wherever  they  occur  in  such  decree,  and  insert  in  lieu 
thereof  the  words  "  three  thousand  dollars." 

Decree  accordingly. 


483 

p  4  56 

HARVEY  vs.  OLMSTED.  4         .  JJI 

4  &y 

4  1  63 

7  8170 

Where,  by  a  will  made  prior  to  the  revised  statutes,  lands  are  devised  in  general      '  1J1  „ 

terms  without  words  oflimitation  or  inheritance,  the  devisee  takes  a  life  estate  only,    ^g  14^7 

And  such  introductory  words  as  these — "  I  order  and  direct  my  real  and  personal    62  1549 

estate  to  be  divided  and  distributed  as  follows,"  do  not  enlarge  the  devise  into  a  fee. 
A  charge,  to  carry  a  fee  by  implication,  where  the  devise  is  without  words  of  limita- 
tion, miist  be  upon  tlie  person  of  the  devisee  in  respect  to  the  lands  devised.     Where 
this  exists,  it  gives  to  the  devise  the  character  of  a  purchase. 

A  testator,  by  his  will  made  in  1821,  gave  a  part  of  his  real  estate  to  his  wife  during 
her  widowhood,  and  after  her  decease  to  two  of  his  children.  To  his  son  Na- 
thaniel he  gave  two  parcels,  one  designated  in  the  will  as  the  Powers  lot,  the  other 
as  the  mountain  lot.  To  another  son  he  gave  a  legacy  of  $1000  to  be  paid  out 
of  his  personal  estate,  if  sufficient  after  paying  debts  and  other  legacies,  but  if 
not  sufficient,  then  to  be  paid  in  land  "  from  the  Powers  lot,  so  called."  There 
were  no  words  of  inheritance  in  any  part  of  the  will.  Introductory  to  all  the  de- 
vises and  bequests  were  these  words :  "  I  order  and  direct  my  real  and  personal 
estate  to  be  divided  and  distributed  as  follows."  In  the  concluding  part  the  testa- 
tor declared,  that  in  case  any  dispute  should  arise  upon  the  will,  the  same  should 
be  referred  to  three  men,  to  be  chosen  for  that  purpose,  who  should  "  declare  theii 
sense  of  the  testator's  intentions,  unfettered  by  law  and  the  niceties  of  legal  con- 
struction." Held,  that  Nathaniel  took  only  a  life  estate  in  the  mountain  lot. 

EJECTMENT,  brought  in  the  supreme  court  by  Anna  Olm- 
sted against  Asa  Harvey,  to  recover  an  undivided  fourth  of 
fifty  acres  of  land  known  as  the  mountain  lot,  situated  in  the 
town  of  Austerlitz,  county  of  Columbia.  The  cause  was  tried 
at  the  Columbia  circuit,  before  WHITING,  circuit  judge,  in  Oc- 
tober, 1846,  when  a  verdict  was  directed  for  the  plaintiff  subject 
to  the  opinion  of  the  supreme  court  on  a  case,  with  leave  tc 
turn  the  same  into  a  bill  of  exceptions,  containing  the  follow 
ing  facts : 


484  CASES  IN  THE  COURT  OF  APPEALS. 

•  i       ». 
Harvey  t>.  Ol  mated. 

The  plaintiff  claimed  as  one  of  the  children  and  heirs  at,  law 
of  Nathaniel  Olmsted,  sen.  The  defendant  claimed  as  the 
grantee  of  Nathaniel  Olmsted,  jun.,  who  died  in  1835,  and 
who  claimed  the  premises  under  the  will  of  Nathaniel  Olmsted, 
sen.  The  question  was  whether  a  fee  or  only  a  life  estate  in 
the  premises  passed  by  that  will. 

Nathaniel  Olmsted,  sen.  died  in  1821,  having  first  made  his 
last  will  and  testament,  which,  after  directing  the  speedy  pay- 
ment of  the  testator's  debts,  proceeded  as  follows  : 

"  Second.  I  order  and  direct  that  my  real  and  personal  estate 
be  divided  and  distributed  as  hereinafter  described,  which  is  as 
follows,  viz.  :  I  give  and  bequeath  unto  my  beloved  wife,  Sylvia 
Olmsted,  the  use  and  occupancy  of  the  home  farm  (so  called) 
containing  about  one  hundred  acres,  with  the  buildings  thereon, 
as  also  she,  the  said  Sylvia  Olmsted,  to  have  the  use  and  occu- 
pancy of  the  Bartlett  lot  (so  called)  which  described  lands  as 
aforesaid,  are  to  remain  in  the  possession  of  the  said  Sylvia  Olm- 
sted, so  long  as  she  remains  my  widow,  and  no  longer.  But  at 
the  decease  of  the  said  Sylvia  Olmsted,  the  above  described 
lands  and  buildings,  are  to  be  equally  divided  between  my  sons 
Nathaniel  Olmsted,  jun.  and  Joseph  Washbum  Olmsted.  I 
give  and  bequeath  to  my  son,  Nathaniel  Olmsted,  jun.  the  lot 
of  land,  that  I  purchased  of  Jacob  Powers,  containing  fifty  acres 
or  more,  and  he  the  said  Nathaniel  to  come  into  possession  of 
the  same  immediately  after  my  decease.  7  also  give  and  be- 
queath imto  my  son,  Nathaniel  Olmsted,  jun.  the  mountain 
lot  of  land  (so  called,}  containing-  about  fifty  acres,  and  the 
said  Nathaniel  to  come  into  possession  of  the  same  immedi- 
ately after  my  decease. 

"I  give  and  bequeath  to  my  son,  Joseph  Washburn  Olmsted, 
one  thousand  dollars  to  be  paid  to  him  when  he  arrives  to  the 
age  of  twenty-one  years ;  the  said  thousand  dollars  to  be  paid 
out  of  my  personal  estate  should  there  be  a  sufficiency  left 
after  the  sums  bequeathed  hereafter  to  Anna  Olmsted  and  Mary 
Olmsted.  I  give  and  bequeath  to  my  daughter  Anna  Olmsted, 
two  hundred  dollars  to  be  paid  to  her  out  of  my  personal  prop- 
erty within  one  year  from  my  decease. 


SYRACUSE,  NOVEMBER,  1848.  435 

Harvey  v.  Olmsted. 


"  I  give  and  bequeath  to  my  daughter  Mary  Olmsted,  three 
hundred  dollars  to  be  paid  out  of  my  personal  property  in  one 
year  from  my  decease.  I  order  and  direct,  that  after  my  decease, 
and  legal  estimation  shall  be  made  of  personal  estate,  if  said  per- 
sonal estate  (after  deducting  all  my  debts  and  the  legacies  to  An- 
na Olmsted  and  Mary  Olmsted  as  aforesaid.)  shall  not  amount 
to  the  sum  of  one  thousand  dollars,  being  the  sum  by  me  be- 
queathed to  Joseph  Washburn  Olmsted ;  then  in  that  case  the 
said  Joseph  Washburn  Olmsted,  shall  be  paid  in  lands  from  the 
Powers  lot  so  called,  to  be  appraised  by  my  executors  hereinafter 
named,  so  as  to  make  to  him  the  sum  of  one  thousand  dollars. 

"  And  I  do  most  sincerely  and  solemnly  enjoin  it  upon  my 
executors,  hereinafter  named,  to  see  and  take  care  that  this  my 
will  be  religiously  fulfilled  in  all  respects  according  to  the  true 
intent  and  meaning  thereof.  But  in  case  any  dispute  should 
arise  respecting  any  gift,  bequest,  matter  or  thing  contained  in 
this  instrument,  then  in  that  case,  the  same  shall  be  referred  to 
three  impartial  and  intelligent  men  of  the  town  of  Canaan, 
known  for  their  honesty  and  integrity,  each  party  choosing  one, 
and  those  two  choosing  a  third,  which  three  men  thus  chosen 
shall,  unfettered  by  law  and  the  niceties  of  legal  construction, 
declare  their  sense  of  the  testator's  intentions,  and  their  decision 
to  be  binding  on  the  parties,  the  same  as  would  be  in  any  court, 
of  record  in  the  United  States." 

The  personal  estate  of  the  testator,  after  paying  his  debts 
and  the  legacies  to  Anna  and  Mary  Olmsted,  was  not  sufficient 
to  pay  the  legacy  of  $1000  to  Joseph  Washburn  Olmsted, 
there  being  a  deficiency  of  $609,69,  which  therefore  according 
to  the  will  became  payable  out  of  the  fifty  acres  called  in  the 
will  the  Powers  lot.  Nathaniel  Olmsted,  jun.  conveyed  the 
mountain  lot,  the  premises  in  question,  to  the  defendant,  in  1826. 

The  supreme  court  gave  judgment  for  the  plaintiff,  (sec  1  Barb. 
Sup.  Court  Rep.  102,)  and  the  defendant,  having  had  a  bill  of 
exceptions  duly  signed  and  sealed,  brings  error  to  this  court. 

K.  Miller,  for  the  plaintiff  in  error.  I.  The  testator  hav- 
ing expressly  ordered  and  directed  that  his  real  and  personal 


486  CASES  IN  THE  COURT  OF  APPEALS. 

Harvey  v.  Olmstetl. 

estate  should  be  divided  and  distributed  as  in  and  by  his  will 
was  directed,  passed  a  fee  to  the  appellant's  grantor  in  the 
premises.  (Jackson  v.  Merrill,  6  John.  191 ;  Carr  v.  Jen- 
nerett,  2  McCord,  66  ;  Morrison  v.  Semple,  6  Binn.  94;  Hun- 
gerford  v.  Anderson,  4  Day,  368 ;  Den,  ex  dem.  Moor,  v. 
M ellen,  5  T.  R.  562  ;  Watson  v.  Powell,  3  CaM,  306 ;  Brown 
v.  Wood,  17  Mzss.  #.  72 ;  Fox  v.  PAeZ/w,  20  TFend.  445.) 

II.  There  are  no  words  of  perpetuity  used  in  any  part  of  the 
will,    and   no   devise  of  any   reversionary  interest  or   estate. 
As  the  testator  made  no  devise  of  any  reversionary  interest  in 
any  of  the  lands,  it  is  evident  he  supposed  he  was  devising  all 
his  real  estate.     (18  Wend.  207,  per  Chancellor.) 

III.  The  devise  to  Nathaniel  Olmsted,  jun.  and  Joseph  W. 
Olmsted,  of  the  home  farm  and  Bartlett  lot  after  the  decease 
of  the  widow,  (who  had  a  qualified  life  estate  therein,)  being  a 
remainder  interest,  shows  clearly  that  the  testator  intended  that 
they  should  take  a  fee  estate.     (Butler  and  wife  v.  Little,  3 
Maine  R.  239 ;  2  Free,  of  Wills,  291, 2 ;  6  Bac.  Abr.  16,  C. 
Phil.  ed.  of  1846  ;   Oatis  v.  Cook,  3  Burr.  16S8  ;  3  Bing.  3, 13  ; 
1  Ves.  sen.  491 ;   Gall  v.  Esdaile,  8  Bing.  323 ;  Spraker  v. 

Van  Alstyne,  18  Wend.  204.) 

IV.  The  devises  to  Nathaniel  Olmsted,  jun.  of  the  Powers 
and  mountain  lots  passed  a  fee,  as  the  Powers  lot  is  expressly 
charged  with  the  deficiency  that  should  or  might  exist  to  pay 
the  legacy  of  $1000  to  Joseph,  after  the  application  of  his  per- 
sonal estate  to  his  debts  and  other  legacies ;  (which  deficiency 
upon  settlement  was  $609,69.)     (Spraker  \.  Van  Alstyne,  18 

Wend.  200  ;  per  Chancellor,  204  ;  per  Senator  Dickinson,  209  ; 
Cook  and  others  v.  Holmes  and  wife,  1 1  Mass.  R.  528  ;  8  id. 
3  ;  1  Munf.  589  ;  6  Binn.  94.)  The  charge  of  the  $1000  leg- 
acy to  Joseph  was  a  direct  charge  upon  the  devisee  of  the  estate 
specifically  devised  to  him,  so  as  to  create  a  fee  by  implication. 
(Doc  v.  Richards,  3  T.  R.  356  ;  Denn,  ex  dcm.  Moor,  v.  Mel- 
len,  5  id.  562 ;  Doe  v.  Allen,  8  id.  499 ;  Jackson  v.  Bull,  10 
John.  153  ;  Heard  v.  Horton,  1  Denio,  166.) 

V.  The  estate  given  to  Joseph,  and  which  the  executors 
were  contingently  authorized  to  set  off  and  convey  to  him  in 


SYRACUSE,  NOVEMBER,  1848.  437 

Harvey  v.  Olmsted. 

satisfaction  of  his  legacy,  must  be  deemed  to  be  a  fee,  and 
which  raises  an  implication  that  the  testator  intended  that 
Nathaniel  should  have  the  same  estate.  (Cook,  fyc.  v.  Holmes., 
11  Mass.  R.  528.) 

VI.  The  whole  tenor,  and  especially  the  concluding  clauses 
of  the  will,  show  that  the  testator  intended  that  a  fee  estate 
should  pass  to  his  two  sons,  arid  that  he  did  not  intend  that  in 
the  disposition  of  his  property  his  will  or  intention  should  be 
fettered  by  the  niceties  or  technicalities  of  legal  construction. 

H.  Hogeboom,  for  the  defendant  in  error.  I.  The  devise  of 
the  mountain  lot,  (which  is  the  lot  in  question,)  is  wholly  with- 
out words  of  inheritance,  and  is  not  aided  by,  or  referred  to  in 
any  other  part  of  the  will.  Upon  the  well  established  princi- 
ples of  the  common  law,  therefore,  prevailing  at  the  testator's 
death,  the  devise  conferred  simply  a  life  estate.  (Dean  v.  Gas- 
kin,  Cowp.  Rep.  657 ;  Jackson  v.  Wells,  9  John.  222  ;  Jackson 
v.  EmUer,  14  id.  198 ;  Ferris  v.  Smith,  17  id.  221.) 

II.  The  introductory  words  in  the  will  by  which  the  testator 
orders  and  directs  his  real  and  personal  estate  to  be  divided  and 
distributed  as  thereafter  directed,  do  not  necessarily  convey  a 
fee.     (Doe  v.  Buckner,  6  T.  R.  610  ;  Doe  v.  Wright,  8  id.  64; 
Doe  v.  Alien,  id.  497 ;  Denn  v.  Gaskin,  Cowp.  657 ;  Hogan 
v.  Jackson,  id.  299  ;    Wright  v.  Russell,  id.  661 ;  Loveacres  v. 
Blight,  id.  352  ;  Roe  v.  Vernon,  5  East,  51 ;   Goodright  v. 
Bar r on,  11  id.  220  ;  Jackson  v.  Harris,  8  John.  141 ;  Jackson 
v.  Wells,  9  id.  222  ;  Bar  hey  dt  v.  Bar  hey  dt,  20  Wend.  576  ; 

Wheaton  v.  Andross,  23  id.  452  ;  2  Taylor's  Prec.  of  Wills, 
292.)  Again,  the  phraseology  expressly  refers  to  the  division 
afterwards  spoken  of,  and  is  therefore  limited  by  the  subsequent 
words. 

III.  A  fee  by  implication  is  not  to  be  deduced  from  the  estates 
given  to  the  two  sons  being  limited  upon  a  previous  life  estate 
to  the  wife.     (Hay  v.  Earl  of  Coventry,  3  T.  R.  83  ;  Hackley 
v.  Mawbry,  3  B.  C.  C.  82  ;   Cojnpton  v.  Compton,  9  East,  267; 
Doe  v.  Clark,  5  Bos.  fy  Pull.  343  ;  Doe  v.  Wright,  8  T.  R. 
64 ;  Doe  v.  Clark,  2  N.  R.  343 ;  Ferris  v.  Smith,  17  John, 


488  CASES  IN  THE  COURT  OF  APPEALS. 

Harvey  v.  Olmsted. 

221 ;  2  Powell  on  Devises,  377.)  Successive  life  estates  were 
lawful  and  were  frequently  created  upon  the  same  property, 
when  this  will  took  effect.  Again,  this  implication,  if  ever  al- 
lowable, does  not  apply  to  the  mountain  lot. 

IV.  A  fee  by  implication  is  negatived  by  the  description  of 
the  premises,  or  terms  employed  to  designate  them.     The  terms 
are  "  the  mountain  lot  of  land,  so  called,"  "  the  home  farm, 
so   called"   " the  Bartlett  lot,   so   called"  &c.  conveying  the 
idea  that  they  were  intended  only  to  designate  the  premises, 
not    the  nature  or  extent   of  the  testator's   interest  therein. 
(Morrison  v.  Semplen,  Binney,  97 ;  Spraker  v.  Van  Alstync, 
13  Wend.  578.) 

V.  The  words  "  to  be  equally  divided  between  them,"  afford 
no  just  inference  of  an  intent  to  pass  a  fee.     (Jackson  v.  Bull, 
10  John.  148  ;  Jackson  v.  Luqucer,  5  Coicen,  221 :  Spraker  v. 
Van  Alstyne,  13  Wend.  582.)     The  use  of  these  words  is  en- 
tirely consistent  with  the  division   of  life  estates ;  they  refer 
probably  to  a  territorial  division.     They  do  not  go  to  the  limi- 
tation of  the  estate.    (Jackson  v.  Luqueer,  5  Cowen,  221.)    They 
do  not  affect  the  mountain  lot. 

VI.  The  charge  upon  the  Powers  lot  does  not  raise  a  fee  by 
implication.     To  raise  a  fee  by  implication,  the  legacy  must  be 
charged  upon  the  person  of  the  devisee.     (Jackson  v.  Bull,  1C 
John.  143  ;  Jackson  v.  Martin,  18  id.  31 ;  Jackson  v.  Harris, 
8  id.  141 ;  Spraker  v.  Sprakcr,  18  Wend.  200  ;  Earhcydt  v. 
Barheydt,  20  id.  576  ;    Whcalon  v.  Andross,  23  id.  452  ;  Doc 
v.  Clark,  5  Bos.  cj-  Pull.  313  ;  Fox  v.  Phclps,  17  Wend.  393 ; 
Burlingham  v.  Bclding,  21  id.  403.)     When  the  charge  or 
annuity  is  to  be  paid  out  of  the  lands  merely  without  saying  by 
whom,  the  devisee's  estate  will  not  be  enlarged.     (8  East,  141 ; 
8  Pclcrsd.  105.)     To  raise  a  fee  by  implication,   the  charge 
must  also  be  absolute  and  not  contingent.     (Mcrson  \.  Black- 
more,  2  Atk.  341 ;  Doc  v.  Allen,  8  T.  R.  497  ;  Jackson  v.  Har- 
ris, 8  John.  141  ;  Spraker  \.  Spraker,  18  Wend.  200;  Spra- 
ker v.   Van  Alstync,  13  id.  578;  Dcnn  v.  Mcllor,  5  T.  R.  558  ; 
Jackson  v.  /?/<//,  10  /oAn.   148.)     The  legacy  to  Joseph  is  not 
necessarily  payable  out  of  the  estate,  devised  to  Nathaniel,  jun, 


SYRACUSE,  NOVEMBER,  1848.  439 

Harvey  v.  Olmsted. 

It  may  be  paid  out  of  the  land  from  the  Powers  lot  without 
touching  the  life  estate  of  Nathaniel  therein.  (Barheydt  v. 
Barheydt,  20  Wend.  576.)  Indeed  the  payment  of  the  defi- 
ciency to  Nathaniel  was  not  necessarily  in  land  at  all ;  it  may 
properly  be  by  the  avails  of  the  sale.  (Jackson  v.  Burr,  9  John. 
104.)  The  implication  of  a  fee,  (if  there  be  one,)  is  confined  to 
the  Powers  lot.  It  does  not  extend  to  the  mountain  lot.  The 
provisions  of  the  will  confine  it  to  the  Powers  lot ;  and  the  books 
are  full  of  cases  showing  the  impropriety  of  thus  raising  an  im- 
plication upon  an  implication.  (Spraker  v.  Spraker,  18  Wend. 
200  ;  Spraker  v.  Van  Alstyne,  13  id.  578.) 

VII.  The  absence  of  words  of  perpetuity  or  of  the  devise  of 
any  reversionary  interest,  furnish  no  sound  or  legitimate  legal 
presumption  of  an  intent  to  devise  the  whole  estate.  (  Whea- 
tonv.  Andross,23  Wend.ko2.}  To  indulge  such  presumption 
would  be  to  subvert  the  unbroken  line  of  English  and  Ameri- 
can decisions,  which  allow  only  a  life  estate,  in  the  absence  of 
words  of  perpetuity. 

GARDINER,  J.  According  to  the  terms  of  the  devise,  Na- 
thaniel Olmsted,  sen.,  took  a  life  estate  only  in  the  mountain 
lot.  Such  was  the  established  construction,  at  the  making  of 
this  will,  of  a  devise  of  real  estate  containing  no  words  of  limi- 
tation. (6  Term  Rep.  610 ;  2  Preston  on  Estates,  188 ;  20 
Wend.  580.)  It  is  a  familiar  proposition  that  a  testator  is  al- 
ways presumed  to  use  the  words  in  which  he  expresses  himself 
according  to  their  strict  and  primary  acceptation,  unless  from 
the  context  of  the  will  it  appears  that  he  has  used  them  in  a 
different  sense.  ( Wigram  on  Wills,  Law  Lib.  vol.  2,  p.  11.) 
The  words  of  this  devise,  as  we  have  said,  import  an  intent  of 
the  testator  to  grant  a  life  estate  only  in  the  premises  in  ques- 
tion, but  it  is  claimed  that  the  context  enlarges  the  estate  to  a 
fee,  by  showing  that  such  must  have  been  the  intention  of  the 
testator. 

We  are  referred  to  the  second  clause  by  which  the  testator 
u  orders  and  directs  that  his  real  and  personal  estate  be  divided 
and  distributed  as  follows."  This  clause  is  obviously  introduc- 

VOL.  I.  62 


490     CASES  IN  THE  COURT  OF  APPEALS. 

Harvey  c.  Olnisted. 

lory  to  the  Actual  distribution  afterwards  made  by  the  decedent. 
It  indicates  an  intention  to  dispose  of  his  property,  real  and  per- 
sonal. But  this  is  not  enough.  There  must  be  an  intent  and 
words  of  disposition.  Both  must  concur  in  every  valid  devise. 
(Saunderson  v.  Dobson,  decided  in  1847,  in  Exch.  Law  Jour. 
249  ;  Doe  v.  Earle,  id.  242.)  The  clause  cannot  embrace  all 
the  subsequent  devises  of  real  property,  because  a  portion  is  de- 
vised to  the  wife  of  the  testator  during  her  widowhood. 

Nor  are  the  introductory  words  necessarily  connected  with 
the  disposition  of  other  portions  of  his  real  estate  to  his  sons. 
The  estate  of  the  testator  in  his  real  property  was  as  much  the 
subject  of  division  as  the  lands  themselves.  If  he  had  given  a 
particular  tract  or  farm  to  one  of  his  sons,  and  made  no  dispo- 
sition of  the  residue,  it  would  not  be  pretended  that  we  could 
extend  the  gift  to  other  lands,  however  emphatically  the  testa- 
tor should  announce  his  intention  to  settle  all  his  property  by 
his  will.  This  remark  is  applicable  to  the  devise  in  question. 

The  testator  has  used  language  which,  according  to  an  un- 
broken series  of  decisions,  import  an  intent  to  give  an  estate  for 
life.  Such  is  his  disposition.  To  use  the  language  of  the  in- 
troductory clause,  he  has  "divided  and  distributed"  such  an 
interest,  and  no  other,  to  each  of  his  sons.  If  the  residue  of  his 
estate  is  undisposed  of,  it  presents  the  ordinary  case  of  a  general 
intention  not  executed.  But  it  furnishes  no  reason  for  depart- 
ing from  the  language  of  the  testator,  nor  any  authority  to  this 
court  in  his  place  to  distribute  his  property  for  him.  (Bar hey dt 
v.  Barheydt,  20  Wend.  580,  581.) 

There  is  no  foundation  for  saying  that  Nathaniel  took  a  fee 
in  consequence  of  the  legacy  of  $1000  being  a  charge  upon  him 
in  respect  to  the  lands  devised  to  him  by  the  testator.  A  charge 
to  create  a  fee  by  implication,  must  be  upon  the  person  of  the 
devisee  in  respect  of  the  lands  devised.  Where  it  exists,  it  takes 
from  the  devise  the  character  of  a  gift,  and  turns  it  into  a  pur- 
chase. The  mode  of  compensation  prescribed  by  the  testator, 
may  be  by  the  payment  of  debts  or  legacies,  or  by  the  relin- 
C'uishment  of  a  right.  To  guard  the  devisee  under  such  c'r- 
cumstances  against  loss,  according  to  the  presumed  intent  of 


SYRACUSE,  NOVEMBER,  1848.  49  J 


Wendell  r.  Crandall. 


the  testator,  the  estate  is  turned  into  a  fee.  (Spraker  v.  Van 
Alstyne,  18  Wend.  205,  and  cases  cited  ;  Jackson  v.  Ball,  1C 
John.  143  ;  20  Wend.  581.)  In  this  case  the  legacy  to  Joseph 
W.  Olmsted  is  made  a  charge  upon  the  personal  estate,  and 
that  failing,  upon  the  Powers  lot.  At  most  the  charge  upon  this 
land  is  contingent.  There  is  no  obligation  imposed  upon  Na- 
thaniel in  respect  of  the  devise  to  him  of  the  mountain  lot;  on 
<he  contrary,  in  default  of  personal  property,  the  legacy  is  to  be 
paid  in  land  other  than  the  premises  in  question,  to  be  appraised 
by  the  executors.  (20  Wend.  582,  and  cases  cited  ;  8  John.  R. 
142 ;  18  Wend.  205,  and  cases  cited.}  We  think,  therefore, 
that  the  decision  of  the  supreme  court  should  be  affirmed. 

Judgment  affirmed. 


491 

WENDELL  vs.  CRANDALL.  2         2387 

j41  95 

73  2364 

A  remainder  in  fee  limited  by  will  to  the  eldest  son  of  the  first  taker  to  whom  an  in- 
termediate life  estate  is  given,  is  contingent  until  the  birth  of  such  son  ;  but  on  the 
happening  of  that  event,  before  the  termination  of  the  life  estate  it  becomes  a  vested 
estate  in  remainder. 

And  where  an  estate  tail  in  remainder  was  so  limited,  and  became  vested  by  the 
birth  of  a  son  prior  to  the  act  of  1786,  abolishing  entails  ;  Jicld,  that  by  the  opera- 
tion of  that  act,  the  estate  tail  in  remainder  was  converted  into  a  fee  simple  in 
remainder,  which,  on  the  death  of  the  remainderman  without  issue  in  1809,  and 
before  the  termination  of  the  intermediate  life  estate,  descended  to  his  father  as  his 
heir  at  law. 

One  who  has  a  vested  remainder  in  fee  simple,  expectant  on  the  determination  of  a 
present  freehold  estate,  has  such  a  seisin  in  law,  where  the  estate  was  acquired  by 
purchase,  as  will  constitute  him  a  stirps  or  stock  of  descent. 

ON  error  from  the  supreme  court,  where  the  action  was 
ejectment,  and  the  verdict  and  judgment  were  in  favor  of  the 
lefendant.  For  a  full  statement  of  the  case,  together  with  the 
arguments  of  the  counsel  and  the  opinion  of  the  supreme  court^ 
see  the  report  of  the  case  in  that  court,  2  Dcnio,  9. 


492      CASES  IN  THE  COURT  OF  APPEALS. 

Wendell  v.  Crandall. 

S.  Stevens,  for  the  plaintiff  in  error. 

D.  Buel,  Jr.  fy  J.  Pierson,  for  the  defendant  in  error. 

BRONSON,  J.  This  case,  and  the  case  of  Van  Rensselaer  v. 
Poucher,  which  is  also  before  us,  involving  the  same  question, 
have  been  so  fully  and  ably  examined  by  the  learned  judge 
who  delivered  the  opinions  of  the  supreme  court,  that  I  shall 
not  go  very  fully  into  the  discussion  of  the  principle  to  be  settled. 

I  shall  assume,  without  however  intending  to  intimate  any 
opinion  on  the  point,  that  the  plaintiff  is  right  in  saying,  that 
the  trustees  took  the  legal  estate  for  the  life  of  Mathias,  the 
grandson  of  the  testator ;  and  that  he  had  only  an  equitable 
life  estate. 

It  was  not  suggested,  nor  am  I  aware  that  the  act  to  abolish 
entails,  passed  in  1782.  can  have  any  material  influence  upon 
the  case,  and  I  shall  therefore  leave  it  entirely  out  of  view. 

Dirk,  the  oldest  son  of  Mathias  the  grandson  of  the  testator, 
was  born  in  1783,  and  died  in  1809  ;  both  events  having  hap- 
pened while  the  life  estate  was  running,  which  did  not  termi- 
nate until  1825.  On  the  birth  of  Dirk,  his  remainder,  which 
was  before  contingent,  became  vested  in  interest,  and  he  was 
seized  of  an  estate  tail  in  remainder.  Although  he  neither 
had  possession,  nor  the  right  to  immediate  possession,  he  had  a 
fixed  right  of  future  enjoyment  the  moment  (he  life  estate  should 
come  to  an  end.  .Such  was  the  state  of  the  case  at  the  time 
the  act  of  1780  was  passed  ;  and  the  question  is,  whether  the 
act  took  cflfect  upon  an  estate  tail,  under  such  circumstances, 
as  well  as  upon  an  estate  tail  where  the  tenant  in  tail  was 
Kei/cd  in  fact,  or  had  actual  possession.  I  think  it  did. 

When  the  legislature  was  about  to  abrogate  the  right  of  pri- 
mogeniture, and  make  other  reforms  in  the  law  of  descents, 
they  found  estates  tail  standing  in  the  way  of  the  new  rule.s 
which  they  proposed  to  establish  ;  and  they  began  the  work 
by  abolishing  those  estates.  They  did  not  however  annihilate 
the  title  to  the  property,  but  only  changed  the  nature  or  quality 
of  the  estate,  so  that  it  would  go  to  the  heirs  general  of  the 


SYRACUSE,  NOVEMBER,  1848.  493 


Wendell  t.  Crandall. 


tenant  in  tail,  instead  of  the  particular  heirs  designated  by  the 
donor.  This  was,  I  think,  the  leading  object  which  the  legis- 
lature had  in  view,  though  the  provision  which  they  made 
served  the  further  purpose  of  getting  rid  of  the  necessity  for 
fines  and  recoveries  as  a  means  of  docking  the  entail.  The 
estate  tail  was  turned  into  a  fee  simple.  Then  the  tenant  in 
tail,  having  by  force  of  the  statute  become  tenant  in  fee  simple, 
and  having  acquired  the  estate  by  purchase,  would  constitute  a 
new  stock  of  descent,  from  whom  the  lands  might  go  according 
to  the  law  of  descents,  instead  of  following  the  form  of  the  gift 
in  tail. 

There  was  the  same  reason  for  attacking  the  estate  tail 
when  the  tenant  in  tail  was  only  seized  in  lawr,  as  there  was 
when  he  was  seized  in  fact ;  and  there  was  no  stronger  reason 
against  doing  it  in  the  one  case,  than  there  was  in  the  other. 
And  on  looking  at  the  statute  it  will  be  seen  that  the  legislature 
did  not  deal  with  the  subject  by  the  halves,  but  made  clean 
work  of  it.  The  title  is  "  an  act  to  abolish  entails,  to  confirm 
conveyances  by  tenants  in  tail,  to  regulate  descents"  &c. ; 
and  the  first  words  of  the  first  section  are,  -  that  all  estates 
tail  shall  be,  and  are  hereby  abolished."  This  sweeping  decla- 
ration was  made  by  men  who  well  understood  the  force  of  lan- 
guage, and  the  nature  of  the  subject  with  which  they  had  to 
deal ;  and  it  can  indicate  nothing  less  than  the  purpose  of 
reaching  ail  estates  tail,  without  exception.  They  were  acting 
in  accordance  with  the  spirit  of  the  times  ;  and  there  was  no 
reason  in  the  nature  of  things  why  they  should  not  cover  the  whole 
ground.  Whatever  room  for  doubt  there  might  have  been  about 

• 

the  true  construction  of  the  remaining  part  of  the  section,  had  it 
stood  alone,  that  doubt  must  be  removed  by  the  language  with 
which  the  section  begins.  That  furnishes  a  key  to  the  intention 
of  theframers  of  the  law  which  cannot  be  mistaken.  If  \ve  omit 
some  words  which  are  not  material  to  the  present  inquiry,  and 
look  only  at  that  branch  of  the  section  which  relates  to  estates 
tail  then  existing,  the  provision  is.  "  that  all  estates  tail  shall 
be,  and  are  hereby  abolished  :  and  that  in  all  cases  where  any 
person  now  is  seized  in  fee  tail  of  any  lands,  tenements  or  here 


494     CASES  IN  THE  COURT  OF  APPEALS. 


Wendell  v.  CranJall. 


ditaments,  such  person  shall  be  deemed  to  be  seized  of  the  same 
in  fee  simple  absolute."  (3  R.  S.  App.  48.)  The  same  broad 
language  with  which  the  section  begins  is  continued  through 
the  clause.  It  is  a  provision  concerning  "  all  estates  tail,"  and 
"all  cases"  where  a  person  is  seized  of  such  an  estate;  and  I 
cannot  doubt  that  the  legislature  intended  to  dispose  of  the 
whole  subject.  They  meant  to  reach  an  estate  tail  in  remain- 
der, as  well  as  one  in  possession. 

It  is  true  that  the  statute  speaks  of  a  person  seized  of  lands, 
tenements  or  hereditaments ;  and,  in  general,  seisin  of  lands 
means  actual  possession  of  them.  But  taken  in  their  connec- 
tion, the  words  evidently  mean,  seisin  of  an  estate  in  lands. 
The  legislature  began  by  speaking  of  estates  tail :  that  was 
the  subject  in  hand  :  those  estates  were  to  be  turned  into  estates 
of  a  different  tenure  or  quality ;  and  the  lawmakers  must  be 
understood  as  speaking  of  the  same  thing  in  the  latter  part  of 
the  clause  which  they  had  mentioned  at  the  first.  As  I  read 
the  statute  the  provision  is,  that  all  estates  tail  shall  be  abol- 
ished ;  and  where  any  person  now  is  seized  of  an  estate  in  fee 
tail  in  any  lands,  &c.  such  person  shall  be  deemed  to  be  seized 
of  the  same,  (to  wit,  an  estate  in  the  lands)  in  fee  simple.  The 
third  section,  which  regulates  descents,  like  the  first,  which 
abolishes  entails,  speaks  of  a  person  seized  of  lands,  tenements 
or  hereditaments  ;  and  I  think  the  word  "seized"  was  used  in 
the  same  sense  in  both  sections.  One  who  has  a  vested  re- 
mainder in  fee  simple,  expectant  on  the  determination  of  a 
present  freehold  estate,  has  such  a  seizin  in  law,  when  the  es- 
tate was  acquired  by  purchase,  as  will  constitute  him  a  stirps 
or  stock  of  descent  under  the  third  section ;  and  the  person 
\vho  has  a  vested  remainder  in  fee  tail,  acquired  in  the  same 
way,  has  such  a  seizin  in  law  as  brings  his  case  within  the  ope- 
ration of  the  first  section.  His  remainder  in  fee  tail  is  turned 
into  a  remainder  in  fee  simple.  The  first  section  brings  the 
case  under  the  influence  of  the  third  ;  and  the  estate  no  longer 
follows  the  will  of  the  donor,  but  is  governed  by  the  general 
law  of  descents. 

Some  stress  has  been  laid  on  the  word  "  fee."     As  Dirk  was 


SYRACUSE,  NOVEMBER,  1848.  495 


Wendell  v.  Crandall. 


not  entitled  to  the  possession  so  long  as  the  life  estate  continued, 
and  consequently  had  not  the  entire  interest,  it  is  said  that  he 
had  no  fee,  and  that  his  interest  could  not  be  turned  into  a  fee 
simple.  This  argument  assumes  that  the  legislature  employed 
the  words  "  fee  tail"  and  "  fee  simple"  to  measure  the  quantum 
of  estate :  but  I  think  the  words  were  used  to  mark  the  kind 
or  quality,  rather  than  the  quantity  of  the  estate.  The  word 
"  fee"  was  originally  used  in  contradistinction  to  allodium,  and 
signified  that  which  was  held  of  another,  on  condition  of  ren- 
dering him  service.  It  related  to  the  quality,  and  not  the  quan- 
tity of  the  estate.  And  although  the  word  is  now  generally 
employed  to  express  the  quantum  of  estate,  that  is  not  its  only 
meaning.  In  framing  this  law,  the  legislature  was  not  con- 
cerned about  the  right  to  present  enjoyment,  but  was  regulating 
the  course  which  the  estate  should  take  in  future.  The  pur- 
pose was,  to  impress  a  new  character  or  quality  upon  the  estate, 
so  that  it  would  no  longer  follow  the  will  of  the  donor,  but  the 
law  of  descents  ;  and  to  that  end,  the  estate  in  fee  tail  was  con- 
verted into  an  estate  in  fee  simple. 

If  this  had  been  such  a  case  as  was  put  by  way  of  argument 
by  the  counsel  for  the  plaintiff  in  error  in  Van  Rensselaer  v. 
Poucher,  to  wit,  if  Dirk  had  been  old  enough  for  that  purpose, 
and  had  died,  leaving  a  son,  before  the  act  was  passed,  then, 
as  the  son  would  take  by  descent,  he  would  not  have  such  a 
seisin  as  would  enable  him  to  transmit  the  estate  by  descent, 
before  he  had  exercised  some  act  of  ownership  over  it  which  the 
law  would  regard  as  equivalent  to  actual  seizin  ;  and  it  may  be 
that  his  estate  tail  would  not  have  changed  its  character  until 
the  determination  of  the  life  estate.  Assuming  such  to  be  the 
law,  it  only  proves  that  there  might  by  possibility  have  been  a 
case,  though  the  thing  was  improbable,  where  the  statute  would 
not  have  had  an  immediate  effect  upon  the  estate  tail.  It  proves 
nothing  against  giving  full  scope  to  the  broad  language  and  obvi- 
ous policy  of  the  statute,  so  far  as  it  can  be  done  consistently 
with  the  rules  of  law  ;  and  it  may  be  done  in  this  case.  Dirk 
took  the  estate  per  formam  doni  from  the  testator,  and  not  by 
descent  from  his  father  Mathias.  He  took  as  a  purchaser,  and 


496  CASES  IN  THE  COURT  OF  APPEALS. 


Butler  v.  Miller. 


had  a  sufficient  seizin  to  cast  a  descent.  There  was  no  good 
reason  why  the  statute  should  not  have  immediate  operation 
upon  his  estate,  as  well  as  upon  estates  in  possession ;  and  I 
think  his  remainder  in  fee  tail  was  converted  into  a  remainder 
in  fee  simple. 

It  is  proper  to  add,  that  after  this  judgment  had  been  render- 
ed, and  a  majority  of  the  judges  of  the  supreme  court  had  been 
changed,  the  question  came  again  before  that  court  in  Van 
Rensselaer  v.  Poucher,  and  upon  full  consideration  was  again 
decided  the  same  way.  And  a  like  decision  was  made  in  May, 
1846,  by  the  circuit  court  of  the  United  States  for  the  southern 
district  of  this  state,  in  the  case  of  Van  Rensselaer  v.  Kearney 
and  others.  I  have  the  authority  of  both  the  learned  judges 
of  that  court  for  saying,  that  the  decision  of  the  supreme  court 
was  not  treated  as  a  controlling  authority ;  but  the  question 
was  examined  and  decided  in  conformity  to  the  opinion  which 
the  judges  of  the  circuit  court  entertained  of  the  law  applicable 
to  the  case. 

The  question  is  certainly  not  free  from  difficulty  ;  but  upon 
the  best  consideration  which  I  have  been  able  to  give  to  it,  I 
am  of  opinion  that  the  judgment  of  the  supreme  court  is  right ; 
and  such  is  the  opinion  of  the  court. 

Judgment  affirmed. 


496  „_  BUTLER  and  VOSBURGII  vs.  MILLER. 

13  '5b^ 

13  '567 

1  r  "119 

4rr7]  It  seems,  that  the  question  of  fraud  in  a  personal  mortgage  should  be  submitted  to  the 
18  "^  * 

ng  «  71      jury,  although  no  change  of  possession  accompanies  the  mortgage  ;  and  the  verdict 

26  5  74      of  the  jury  in  favor  of  the  bana  fides  of  the  transaction  will  be  as  conclusive  as  upon 

60  any  other  question  of  fact. 

fi2  5223 

oo  :-504  A  judgment  confessed  by  the  mortgagor  to  the  mortgagee  for  the  same  debt  secured 

1138  °512      Dy  a  personal  mortgage,  does  not  merge  or  extinguish  the  mortgage,  where  by 

agreement  the  judgment  is  taken  an  collateral  merely. 

And  even  where  there  is  no  agreement  that  the  judgment  shall  be  held  as  collateral 
tfttfrc,  whether  a  judgment  for  the  debt  can  work  an  extinguishment  of  the  mort- 


SYRACUSE,  NOVEMBER,  1848.  497 


Butler  v.  Miller. 


gage.  The  case  of  Butler  and  Vosburgh  v.  Miller,  (1  Dcnio,  407,)  referred  to 
and  questioned  in  this  particular. 

But  where  execution  upon  a  judgment  confessed  for  the  mortgage  debt  was  issued, 
and  levied  upon  the  chattels  mortgaged,  which  were  advertised  for  sale  thereunder, 
and  after  the  same  property  was  sold  upon  another  execution  against  the  mortga- 
gor, the  mortgagees  moved  the  supreme  court  for  an  order  directing  the  sheriff 
to  apply  the  proceeds  of  the  sale  upon  their  execution ;  held,  in  an  action  of  trover 
by  the  mortgagees  against  the  sheriff  who  made  the  sale,  that  these  acts  were  re- 
pugnant to  any  claim  under  the  mortgage,  and  precluded  the  plaintiffs  from  so 
claiming  the  property. 

It  seems,  that  a  personal  mortgage  transfers  to  the  mortgagee  the  whole  legal  title  to 
the  thing  mortgaged,  subject  only  to  be  defeated  by  the  performance  of  the  con- 
dition. 

THIS  was  an  action  of  trover  brought  in  the  supreme  court 
oy  Butler  and  Vosburgh  against  Miller,  for  a  number  of  horses, 
cattle  and  hogs,  and  a  quantity  of  farming  utensils,  and  other 
property.  The  cause  was  first  tried  before  CUSHMAN,  late  cir- 
cuit judge,  at  the  Columbia  circuit,  in  September,  1843,  when 
a  verdict  was  had  for  the  plaintiffs,  which  was  set  aside  by  the 
supreme  court  and  a  new  trial  ordered.  (See  1  Denio,  407.) 
A  second  trial  was  had  before  PARKER,  circuit  judge,  in  March, 
1846,  and  on  that  trial  the  case  was  as  follows : 

The  plaintiffs  gave  in  evidence  a  chattel  mortgage  upon  the 
property  in  question,  executed  to  them  by  one  Abraham  B. 
Vanderpoel,  dated  April  19,  1842,  which  had  been  duly  filed  in 
the  proper  town  clerk's  office.  The  instrument  recited  that 
Vanderpoel  was  indebted  to  the  plaintiffs  in  the  sum  of  $498,72, 
being  the  amount  of  three  promissory  notes  made  by  Vander- 
poel, and  held  by  the  plaintiffs,  and  the  mortgage  was  to  be- 
come void  if  Vanderpoel  should  pay  the  debt  by  the  first  day 
of  October  then  next.  Evidence  was  given  (ending  to  show  a 
just  consideration  for  the  notes.  At  the  time  the  mortgage  was 
given  the  property  was  on  the  farm  of  the  mortgagor,  and  was 
used  by  one  Mosher,  who  worked  the  farm  on  shares,  under  an 
agreement  by  which  Vanderpoel  was  to  furnish  teams,  stock 
and  utensils.  After  the  mortgage  was  given  the  property  re- 
mained on  the  farm,  and  was  used  as  before.  On  the  15th 
day  of  July,  1842,  the  defendant,  as  sheriff  of  the  county  of 
Columbia,  sold  the  property  in  question  by  virtue  of  an  execu- 

VOL.  I.  63 


498  CASES  IN  THE  COURT  OF  APPEALS. 

Butler  v.  Miller. 


tion  against  Vanderpoel,  in  favor  of  the  Lafayette  B&uk, 
which  was  delivered  to  the  sheriff  on  the  5th  of  May,  1842. 
The  evidence  tended  to  show  that  the  plaintiffs  asserted  their 
claim  under  the  mortgage  at  the  sale,  and  forbid  the  sale. 

It  also  appeared  that  on  the  7th  of  May,  1842,  the  plaintiffs 
took  from  Vanderpoel  a  bond  and  warrant  of  attorney  for  the 
amount  of  the  notes  secured  by  the  mortgage,  upon  which  judg- 
ment was  entered  in  the  supreme  court  on  the  same  day,  and 
execution  thereon  was,  by  Vanderpocl's  consent,  issued  immedi- 
ately to  one  of  the  deputies  of  the  sheriff  aforesaid.  It  was  also 
proved,  after  objection  duly  made  and  exception  by  the  defen- 
dant's counsel,  that  it  was  agreed  between  the  plaintiffs  and 
Vanderpoel  that  the  judgment  should  be  taken  as  collateral  to 
the  mortgage.  The  plaintiffs'  execution,  soon  after  it  was  is- 
sued, was  levied  upon  the  property  in  question,  and  the  prop 
erty  was  advertised  for  sale  both  under  that  execution  and  the 
one  above  mentioned  in  favor  of  the  Lafayette  Bank. 

It  also  appeared  that  after  the  sheriff's  sale  above  mentioned, 
the  plaintiffs  made  a  motion  in  the  supreme  court  for  an  order 
requiring  the  defendant,  as  such  sheriff,  to  apply  the  proceeds 
of  the  sale  on  the  judgment  and  execution  in  their  favor.  This 
motion  was  based  upon  an  allegation  that  the  execution  of  the 
Lafayette  Bank,  when  first  delivered  to  the  sheriff,  was  di- 
rected to  the  sheriff  of  the  county  of  Hudson,  (there  being  in 
fact  no  such  county.)  and  that  the  error  was  corrected  and  the 
execution  redelivered  to  the  sheriff  after  the  execution  of  the 
plaintiffs  was  issued.  The  motion  was  denied  with  costs. 

The  defendant's  counsel  requested  the  circuit  judge  to  decide 
and  charge  the  jury.  1.  That  the  mortgage  under  which  the 
plaintiffs  claimed  was  fraudulent  and  void  as  against  the  judg- 
ment and  execution  of  the  Lafayette  Bank.  2.  That  the 
judgment  taken  by  the  plaintiffs  on  the  7th  of  May,  1812.  for 
the  same  notes  secured  by  the  mortgage,  merged  the  notes  and 
extinguished  the  lien  of  the  mortgage.  3.  That  the  issuing  of 
execution  upon  that  judgment,  the  levy  upon  the  mortgaged 
property,  and  the  motion  lo  the  supreme  court  to  have  the 
proceeds  of  the  sheriff's  sale  applied  upon  that  execution,  were 


SYRACUSE,  NOVEMBER,  1848.  499 


Butler  v.  Miller. 


severally  acts  inconsistent  with  any  claim  under  the  mortgage, 
and  destroyed  all  right  to  assert  any  such  claim.  The  circuit 
judge  ruled,  that  the  question  of  fraud  was  one  of  fact  for  the 
jury  to  decide.  That  the  judgment  was  not  a  merger  or  ex- 
tinguishment of  the  mortgage,  if  it  was  taken  as  collateral 
merely ;  if  not  so  taken,  then  that  it  was  a  merger.  Upon  the 
3d  proposition  he  refused  to  charge  as  requested.  The  defen- 
dant excepted,  and  the  jury  gave  their  verdict  for  the  plaintiffs. 
The  defendant  moved  in  the  supreme  court  for  a  new  trial  on 
bill  of  exceptions,  which  was  granted  by  that  court.  The 
plaintiffs  appealed  to  this  court  under  the  judiciary  act  of  De- 
cember, 1847. 

K.  Miller,  for  the  defendant. 
J.  H.  Reynolds,  for  the  plaintiffs. 

JOHNSON,  J.  The  question  of  the  bona  fides  of  the  mortgage 
was  properly  submitted  to  the  jury,  and  their  verdict  in  favor 
of  the  honesty  and  fairness  of  the  transaction  is  conclusive  ac- 
cording to  all  the  cases  since  Smith  v.  Acker,  (23  Wend.  653.) 

The  circuit  judge  was  requested  to  charge  the  jury  that  the 
subsequent  judgment  on  the  notes  operated  as  a  merger  of  the 
notes  and  consequently  avoided  the  mortgage.  The  judge, 
however,  charged  that  the  judgment  did  operate  as  a  merger 
of  the  notes  and  mortgage  unless  it  was  satisfactorily  shown 
that  the  judgment  was  taken  as  collateral  to  the  mortgage,  in 
which  case  it  was  not  a  merger. 

The  charge  upon  this  point  was  in  strict  accordance  with 
the  rule  laid  down  by  the  supreme  court,  (1  Denio,  407,)  when 
this  cause  was  before  it  on  a  former  trial,  and  must  be  regarded 
as  correct  unless  that  court  was  then  in  error  as  to  the  true  rule 
upon  the  subject. 

It  may  perhaps  well  be  doubted  whether  the  judgment  was 
a  security  of  a  higher  nature  than  the  personal  mortgage;  and 
even  if  it  were,  whether  it  would  operate  to  extinguish  the 
mortgage  and  divest  the  mortgagees  of  the  title  they  had  ac- 


500     CASES  IN  THE  COURT  OF  APPEALS. 


Butler  r.  Miller. 


quired  under  it.  It  will  scarcely  be  contended  that  in  case  the 
notes  in  question  had  been  secured  by  a  mortgage  upon  real 
estate,  a  judgment  upon  them  would  have  extinguished  such 
mortgage.  And  yet  a  mortgage  upon  real  estate  is  a  mere 
security  and  incumbrance  upon  the  land  and  gives  the  mort- 
gage no  title  or  estate  therein  whatever.  Whereas  a  per- 
sonal mortgage  is  more  than  a  mere  security.  It  is  a  sale 
of  the  thing  mortgaged  and  operates  as  a  transfer  of  the 
whole  legal  title  to  the  mortgagee,  subject  only  to  be  defeated 
by  the  full  performance  of  the  condition.  And  if  it  be  con- 
ceded that  a  judgment  upon  the  original  indebtedness  would 
not  extinguish  a  collateral  security  for  its  payment  upon  real 
estate,  I  do  not  see  how  it  could  divest  a  title  to  personal  prop- 
erty acquired  by  purchase.  A  vested  legal  title,  whether  in 
real  or  personal  property,  is  the  highest  of  all  securities — cer- 
tainly higher  than  the  mere  lien  of  a  judgment  upon  land,  or 
the  right  of  a  plaintiff  to  personal  property  acquired  by  levy 
under  an  execution. 

Although  it  is  clear  that  the  notes  were  merged  in  the  judg- 
ment by  operation  of  law,  it  does  not,  as  I  think,  certainly 
follow  that  all  the  collateral  securities  would  be  extinguished. 
The  debt  is  not  yet  satisfied.  The  notes  may  have  been 
cancelled,  but  the  debt  was  not,  and  until  that  is  done  it 
seems  to  me  that  all  mere  collateral  securities,  whether  upon 
real  or  personal  property,  should  be  allowed  to  stand  ;  espe- 
cially titles  to  property  acquired  under  instruments  where  the 
parties  stand  in  the  relation  of  vendor  and  purchaser  without 
fraud.  The  rule  that  security  of  a  higher  nature  extinguishes 
inferior  securities  will  be  found,  I  apprehend,  only  to  apply  to 
the  state  or  condition  of  the  debt  itself,  and  means  no  more 
than  this — that  when  an  account  is  settled  by  a  note,  a  note 
changed  to  a  bond,  or  a  judgment  taken  upon  either,  the  debt 
as  to  its  original  or  inferior  condition  is  extinguished  or  swal- 
lowed up  in  the  higher  security ;  and  that  all  the  memoran- 
dums or  securities  by  which  such  inferior  condition  was  evi- 
denced lose  their  vitality.  It  has  never  been  applied,  and  I 
think  never  should  be,  to  the  extinguishment  of  distinct  collat- 


SYRACUSE,  NOVEMBER,  1848. 


Butler  v.  Miller. 


eral  securities,  whether  superior  or  inferior  in  degree.  These 
are  to  be  cancelled  by  satisfaction  of  the  debt  or  voluntary  sur- 
render alone.  This  most  obvious  and  rational  distinction  seems 
to  have  been  overlooked  by  the  supreme  court  in  the  opinion  to 
which  I  have  referred. 

It  is  unnecessary,  however,  to  decide  the  question  here  dis 
cussed,  as  it  was  put  to  the  jury  substantially  to  find  whether 
it  was  agreed  or  intended  by  the  parties  in  entering  up  the 
judgment  to  cancel  the  mortgage;  and  I  admit  that  if  such 
had  been  the  agreement  and  intention,  there  was  sufficient 
consideration  to  support  it,  and  that  the  mortgage  must  have 
yielded  to  the  superior  force  of  the  agreement,  whether  express 
or  implied. 

The  jury  have  determined  by  their  verdict  that  the  parties 
to  the  mortgage  did  not  intend  to  cancel  it,  and  that  notwith- 
standing the  judgment,  it  remained  a  valid  subsisting  security. 

Thus  far  then  it  seems  to  be  established  by  the  verdict,  that 
at  least  up  to  the  time  of  the  execution  being  placed  in  the 
hands  of  the  sheriff  by  the  plaintiffs,  the  mortgage  was  a  valid 
instrument  in  their  hands,  and  vested  in  them  the  legal  title  to 
all  the  property  it  purported  to  convey,  subject  to  be  defeated 
only  by  payment  and  satisfaction,  or  voluntary  waiver  or  sur- 
render. 

It  remains  to  be  seen  whether  the  plaintiffs  have  in  any  way 
divested  themselves  of  their  title  to  the  property  thus  acquired, 
or  been  guilty  of  any  acts  which  would  authorize  the  court  to 
estop  them  from  asserting  their  rights  under  the  mortgage. 

If  this  was  a  mere  question  as  to  whether  a  party  might  pur- 
sue one  of  several  remedies  or  collateral  securities  to  any  extent 
short  of  actual  satisfaction  without  prejudice  to  the  others,  no 
one  I  apprehend  could  entertain  any  doubt.  But  that  is  not 
the  question.  The  precise  question  here  is  whether  the  plain- 
tiffs in  pursuing  their  remedy  under  the  judgment  have  not  so 
treated  and  dealt  with  the  property  in  question  as  to  preclude 
themselves  from  setting  up  their  title  or  claim  to  it  under  the 
mortgage.  At  the  time  the  plaintiffs'  execution  was  issued  the 
sheriff  as  against  them  had  no  right  to  seize  the  property  and 


502     CASES  IN  THE  COURT  OF  APPEALS. 


Butler  v.  Miller. 


sell  it  as  Vanderpoel's  without  first  paying  their  mortgage,  and 
could  acquire  no  such  right  except  through  their  assent  express 
or  implied.  And  when  they  voluntarily  placed  their  execution 
in  the  hands  of  Reynolds,  the  deputy,  with  directions  to  him  to 
levy  upon  this  property  and  sell  it,  they  certainly  to  that  extent 
unequivocally  consented  to  its  being  treated  as  Vanderpoel's. 
And  had  they  afterwards  stood  by  and  suffered  it  to  be  sold 
without  objection,  they  would  have  been  estopped  forever  from 
asserting  their  title  or  claim  under  the  mortgage.  (Cowen  6f 
HilVs  Notes,  200,  201,  203.) 

It  seems  to  me,  however,  that  at  any  time  before  sale  or  be- 
fore any  third  person  was  placed  by  means  of  such  assent  in  a 
situation  to  be  thereby  prejudiced,  it  was  clearly  revocable. 
(Id.  and  cases  there  cited  ;  Wallis  v.  Truesdcll,  6  Pick.  Rep. 
455  ;  Uffred  v.  Lucas,  2  Hawks,  214.)  It  can  make  no  differ- 
ence, that  I  can  perceive,  that  the  party  to  whom  such  consent 
or  permission  is  given  is  a  public  officer  whose  custody  of  the 
goods  is  the  custody  of  the  law,  and  who  is  to  make  a  title  to 
third  persons  by  sale  under  legal  process.  The  right  to  make 
or  convey  a  title  at  all,  where  the  defendant  in  the  execution  is 
not  the  true  owner  of  the  property,  must  rest  upon  the  assent 
either  express  or  implied  of  the  person  who  has  the  real  title, 
and  if  that  assent  may  be  withdrawn  by  him  and  his  own  title 
asserted  at  any  time  before  the  right  of  selling  it  as  the  property 
of  the  defendant  in  the  execution  has  been  exercised  by  the 
officer,  a  sale  afterwards  would  be  as  unauthorized  and  tortious 
as  though  no  such  assent  had  ever  been  given.  The  rights  of 
the  plaintiffs  in  the  execution  first  in  the  hands  of  the  sheriff 
had  not  as  yet  been  prejudiced  or  in  any  manner  affected. 
They  were  as  perfect  after  the  plaintiffs  in  this  suit  had  forbid 
the  sale,  unless  their  mortgage  was  first  satisfied,  as  they  were 
before  the  latter  execution  was  placed  in  the  sheriff's  hands. 
Nor  could  the  defendant  or  those  whose  interests  he  repre- 
sents complain  that  they  had  been  misled  or  suffered  to  act  in 
ignorance  of  the  plaintiffs'  claims.  They  had  notice  in  sea- 
son to  put  them  upon  inquiry,  and  proceeded  afterwards  at 
their  peril. 


SYRACUSE,  NOVEMBER,  1848.  5Q3 

Butler  v.  Miller. 

If  the  grounds  I  have  assumed  are  correct,  that  the  authority 
to  the  defendant  to  dispose  of  the  property  as  that  of  Vander- 
poel,  given  by  the  plaintiffs,  when  they  placed  their  execution  in 
his  hands,  was  revocable,  and  that  they  did  revoke  it  before  the 
sale  and  in  time  to  preserve  their  rights  under  the  mortgage,  it 
follows  that  they  ought  to  recover  unless  it,  can  be  made  to  ap- 
pear that  their  application  for  the  money  in  the  hands  of  the 
sheriff,  subsequent  to  the  sale,  was  an  effectual  waiver  or  relin- 
quishment  of  the  claim  asserted  by  them  before  the  commence- 
ment of  the  sale,  and  a  ratification  of  the  sale,  notwithstanding 
the  dissent  at  the  time. 

But  how  stands  the  case  here  ?  Having  placed  themselves  in 
a  situation  to  vindicate  their  rights  as  owners  under  the  mort- 
gage, have  not  the  plaintiffs  by  their  subsequent  acts  entirely 
abandoned  the  ground  assumed  at  the  opening  of  the  sale,  and 
returned  to  the  one  they  elected  to  occupy  when  they  directed  the 
sheriff  to  levy  upon  and  sell  the  property  as  Vanderpoel's  by  vir- 
tue of  their  execution?  The  bill  of  exceptions  shows  that  one  of 
the  plaintiffs  bid  off  a  portion  of  the  property  at  the  sale,  and  in 
pursuance  of  some  prior  arrangement  by  which  a  credit  was  to  be 
given  to  enable  the  parties  to  get  a  decision  of  the  supreme  court 
upon  their  conflicting  claims  for  the  proceeds  of  the  sale,  gave  his 
note  to  the  sheriff  at  ninety  days  for  the  amount  of  his  bid.  And 
after  the  sale,  according  to  their  affidavit,  and  while  the  money 
was  in  the  hands  of  the  sheriff's  deputy,  they  insisted  that  he 
should  first  satisfy  their  execution  still  in  his  hands  by  applying 
the  money  thereon.  This  the  sheriff  refused  to  do.  And  upon 
this  refusal  the  plaintiffs,  on  an  affidavit  and  notice  to  the 
plaintiff's  attorney  in  the  other  execution,  moved  the  supreme 
court  to  have  the  avails  of  the  sale  applied  to  the  satisfac- 
tion of  their  execution  in  the  first  instance.  The  affidavit 
upon  which  they  founded  their  motion  contains  no  intimation 
that  the  sale  was  not  with  their  assent  and  for  their  benefit. 
Indeed  the  application  could  proceed  upon  no  other  conceivable 
idea  than  that  of  their  execution  continuing  in  the  hands  of  the 
officer  as  a  valid  process  binding  upon  the  property  held  by 
him  and  entitled  to  satisfaction  from  the  proceeds  of  the  sale 


504  CASES  IN  THE  COURT  OF  APPEALS. 


Butler  v.  Miller. 


It  implies  the  full  and  unequivocal  concession  that  Vanderpoel 
was  the  owner  of  the  property,  and  that  the  moneys  growing 
out  of  the  sale  belonged  to  his  creditors  having  executions  in 
the  sheriff's  hands  at  the  time  of  the  sale.  It  can  make  no 
difference  that  I  can  perceive  in  principle  that  their  application 
was  denied  and  their  debt  remains  unsatisfied. 

Having  abandoned  the  grounds  they  assumed  at  the  opening 
of  the  sale,  and  elected  to  treat  the  sale  as  a  legal  and  valid 
transfer  of  the  property  to  the  purchasers,  and  asserted  their 
rights  as  creditors  of  Vanderpoel  to  the  proceeds  of  the  sale  by 
virtue  of  their  execution,  and  afterwards  compelled  the  other 
claimants  to  come  into  court  and  litigate  their  claim  to  the 
same  ;  they  must  rest  content  although  judgment  passed 
against  them.  They  are  adjudged  to  stand  in  the  same  situa- 
tion as  though  they  had  interposed  no  objection  from  the  begin- 
ning, but  had  acquiesced  throughout  in  the  proceedings  of  the 
sheriff.  It  was  said  upon  the  argument  that  the  supreme  court 
in  deciding  the  question  upon  the  motion,  held  that  the  plain- 
tiffs were  estopped  from  claiming  the  moneys  arising  from  the 
sale,  and  sent  them  back  to  the  rights  asserted  by  them  under 
their  mortgage.  But  no  such  question  is  presented  by  the  bill 
of  exceptions,  or  was  before  the  circuit  judge,  and  cannot  be 
raised  and  passed  upon  in  this  court. 

I  am  of  opinion,  therefore,  that  the  circuit  judge  erred  in  his 
refusal  to  charge  the  jury  as  requested  by  the  defendant  in  re- 
gard to  the  plaintiffs'  proceedings  to  obtain  the  money  after  the 
sale,  and  that  a  new  trial  should  be  granted. 

New  trial  granted. 


SYRACUSE,  NOVEMBER,  1848. 


Ruckman  v.  Cowell. 


505 

4          '279 
8  4261 

RUCKMAN  vs.  COWELL.  8         2437 

8          2438 

14          8135 
Where  the  form  of  the  pleadings  is  such  that  a  party  has  had  no  opportunity  of  s*t-       . .  B  ..  „ 

ting  up  fraud  in  avoidance  of  a  bankrupt's  discharge,  he  may  give  the  fraud  in      77  "218 

evidence  on  the  trial  without  having  pleaded  it.  107  '     6 

Accordingly,  where  a  party  who  was  sued  in  trespass  for  taking  goods,  pleaded  not 
guilty  and  gave  notice  of  justification  under  a  judgment  and  execution  against  the 
plaintiff,  and  on  the  trial  the  plaintiff  proved  his  discharge  as  a  bankrupt  obtained 
after  the  judgment  was  rendered  ;  held,  that  the  defendant  might  give  fraud  in 
evidence  so  as  to  avoid  the  discharge. 

In  pleading  a  bankrupt's  discharge,  the  facts  on  which  jurisdiction  depends  must  be 
averred ;  but  when  the  discharge  is  offered  in  evidence,  jurisdiction  will  be  presumed 
until  the  contrary  appears.  Per  BRONSON  J. 

The  circuit  and  district  courts  of  the  United  States,  though  of  limited  jurisdiction, 
are  not  inferior  courts  in  the  technical  sense  of  the  term.  Per  BRONSON,  J. 

A  valid  discharge  in  bankruptcy  extinguishes  a  judgment,  so  that  the  creditor  who 
seizes  the  bankrupt's  goods  by  virtue  of  the  judgment  and  execution  thereon,  may 
be  charged  as  a  trespasser,  even  if  he  have  no  knowledge  of  the  discharge.  Per 
BRONSON,  J. 

But  otherwise  as  to  the  officer  making  the  levy.  He  is  protected  by  the  process 
regular  on  its  face. 

ERROR  from  the  supreme  court,  where  Cowell  sued  Ruck- 
man in  trespass  de  bonis,  &c.  The  cause  was  tried  at  the 
Albany  circuit  in  October,  1844,  before  PARKER,  circuit  judge, 
and  a  verdict  had  for  the  plaintiff.  The  defendant  moved  in 
the  supreme  court  for  a  new  trial  on  a  bill  of  exceptions,  which 
motion  was  denied  by  that  court  and  judgment  rendered  for 
the  plaintiff.  The  facts  are  sufficiently  stated  in  the  opinion 
of  BRONSON,  J. 

S.  tSfevens,  for  the  plaintiff  in  error. 

H.  G.  Wheat  on:  for  the  defendant  in  error. 

BRONSON,  J.  The  case  may  be  stated  in  few  words.  Cowell 
brought  an  action  of  trespass  de  bonis  asportatis  against  Ruck- 
man in  the  supreme  court ;  the  defendant  pleaded  not  guilty, 
and  gave  notice  of  justification  under  a  judgment  and  execu- 

VOL.  I.  64 


506  CASES  IN  THE  COURT  OF  APPEALS. 

Ruckman  v.  Cowell. 

lion  in  his  favor,  against  the  plaintiff.  On  the  trial,  the  plain- 
tiff proved  the  taking  of  the  goods  by  the  sheriff  of  New- York 
upon  an  execution  in  favor  of  the  defendant  against  the  plain- 
tiff; and  there  rested  his  cause.  The  defendant  then  gave  in 
evidence  the  fieri  facias  under  which  the  sheriff  acted,  and  the 
judgment  on  which  the  execution  issued.  The  judgment  was 
recovered  on  the  8th  day  of  February,  1841,  upon  two  promis- 
sory notes  made  by  the  plaintiff  in  1840.  The  plaintiff  then 
offered  in  evidence  his  discharge  as  a  voluntary  bankrupt  under 
the  act  of  1841,  granted  by  the  district  court  of  the  United  States 
for  the  northern  district  of  New- York  on  the  25th  day  of  July, 
1842.  The  defendant  objected  to  the  admission  of  this  evi- 
dence on  several  grounds:  1.  The  evidence  was  immaterial, 
and  if  admitted,  would  not  subject  the  defendant  to  an  action 
of  trespass  for  taking  the  property  ;  2.  The  plaintiff  must  show 
that  the  district  court  acquired  jurisdiction  to  grant  the  dis- 
charge ;  and  3.  The  act  of  congress  under  which  the  discharge 
was  granted  was  unconstitutional  and  void.  The  court  over- 
ruled all  of  these  objections,  and  the  discharge  was  given  in 
evidence.  It  purported  to  have  been  granted  on  the  petition  of 
the  bankrupt.  The  defendant  then  offered  evidence  to  prove 
that  the  plaintiff  had  been  guilty  of  such  acts  of  fraud  as  would, 
by  the  bankrupt  act,  avoid  the  discharge.  This  evidence  was 
rejected  by  the  court,  on  the  ground  that  the  defendant  had 
not  given  the  plaintiff  notice  of  the  frauds  which  he  proposed  to 
prove.  The  defendant  excepted  to  this,  and  the  other  decisions 
of  the  court ;  and  verdict  and  judgment  having  passed  for  the 
plaintiff,  the  defendant  now  brings  error. 

1.  If  the  discharge  was  valid,  it  extinguished  the  judgment; 
and  the  defendant  was  a  trespasser  for  afterwards  acting  under 
it.  As  the  execution  was  regular  upon  its  face,  and  issued  from 
a  court  of  competent  jurisdiction,  it  was  a  protection  to  the  offi- 
cer who  made  the  levy  ;  but  it  could  not  justify  the  party  at 
whose  instance  it  was  issued.  He  acted  at  his  peril.  It  is  true 
that  he  may  have  been  ignorant  of  the  discharge  ;  but  that  was 
his  misfortune.  Having  seized  the  goods  without  authority,  it 


SYRACUSE,  NOVEMBER,  1848.  5Q7 


Ruckman  r.  Cowell. 


was  a  trespass  for  which  he  must  answer,  however  innocent  he 
may  have  been  of  any  intention  to  do  an  illegal  act. 

2.  In  pleading  a  bankrupt's  discharge  it  has  been  held  neces 
sary  to  show  that  the  court  had  jurisdiction  to  grant  it,  by  aver- 
ring the  existence  of  the  facts  on  which  jurisdiction  depended. 
(Sackett  v.  Andross,  5  Hill,  327  ;  Stephens  v.  Ely,  6  id.  607. 
And  see  Morgan  v.  Dyer,  10  John.  161 ;  Jenks  v.  Stebbins,  11 
id.  224.)  But  when  the  discharge  is  given  in  evidence,  jurisdiction 
to  grant  it  should  be  presumed  until  the  contrary  appears.     It 
would  be  otherwise  if  the  discharge  were  granted  by  a  commis- 
sioner, or  a  court  of  strictly  inferior  jurisdiction.     But  the  district 
and  circuit  courts  of  the  U.  States,  though  of  limited  jurisdiction, 
are  not  inferior  courts  in  the  technical  sense  of  the  term.     If 
jurisdiction  do  not  appear  upon  the  proceedings,  their  judgments 
and  decrees  will  be  reversed  on  error  or  appeal.     But  they  are 
not  nullities,  which  may  be  disregarded  in  a  collateral  proceed- 
ing.    (McCormick  v.  Sullivant,    10    Wheat.  192.)     In   this 
respect  the  district  and  circuit  courts  of  the  United  States  stand 
on  the  same  footing  as  courts  of  general  jurisdiction  ;  and  the 
authority  of  such  courts  is  always  to  be  presumed,  until  the 
contrary  is  shown.     It  is  true  that  the  bankrupt  act  does  not,  in 
terms,  give  any  effect  to    the  discharge  except  "  when  duly 
granted."     (§  4.)     But  the  law  presumes  that  it  was  duly  grant- 
ed, until  the  contrary  appears. 

3.  The  rejection  of  the  evidence  to  impeach  the  discharge  for 
for  fraud  was,  I  think,  clearly  wrong.     True,  the  4th  section  of 
the  bankrupt  act  says,  in  effect,  that  the  discharge  may  be  im- 
peached for  fraud   on  prior  reasonable  notice  specifying  in 
writing  such  fraud.     But  that  means  no  more  than  that  notice 
shall  be  given  where  the  case  is  such  that  the  fraud  may  be 
pleaded  ;  and  not  that  the  creditor  must  plead  the  fraud  at  his 
peril  where,  as  in  this  case,  he  had  no  opportunity  to  do  it.    If 
the  debtor,  on  being  sued,   pleads  his  discharge,   the  creditor 
must  reply  the  fraud,  or  he  will  not  be  allowed  to  prove  it  on 
the  trial.     But  that  rule  cannot  apply  where,  as  in  this  case, 
the  discharge  is  given  in  evidence  without  having  been  pleaded, 
and  consequently  where  the  creditor  could  not  plead  the  fraud 


508     CASES  IN  THE  COURT  OF  APPEALS. 


Ruckman  r.  Cowell. 


If  there  had  been  negative  words  in  the  statute,  as  that  the 
discharge  should  only  be  impeached  when  the  fraud  was  plead 
ed,  they  would  hardly  be  construed  as  applying  to  a  case  where 
the  creditor  had  no  opportunity  to  plead  the  fraud.     But  there 
are  no  negative  words  in  the  statute. 

The  same  question  may  arise  about  giving  the  discharge  in 
evidence  in  favor  of  the  debtor.  The  4th  section  provides,  that 
the  discharge  shall  and  may  be  pleaded  as  a  full  and  complete 
bar  to  all  suits.  If  the  bankrupt,  when  sued,  omits  to  plead 
the  discharge,  he  cannot  give  it  in  evidence.  But  where  the 
form  of  the  pleadings  is  such  as  to  afford  him  no  opportunty  of 
pleading  the  discharge,  there  can  be  no  doubt  that  it  may  be 
given  in  evidence  on  the  trial  without  notice.  It  was  so  given 
in  evidence  in  this  case,  though  there  was  about  as  much 
ground  for  rejecting  it,  as  there  was  for  rejecting  the  answering 
evidence  which  was  offered  by  the  creditor.  There  was,  I  think, 
no  ground  for  rejecting  either  of  them. 

There  are  many  cases  in  the  law  where  a  party  must  plead 
or  give  notice  of  the  particular  matter  which  he  intends  to 
prove  on  the  trial,  or  he  will  be  precluded  from  proving  it ;  but 
so  far  as  I  can  recollect,  the  rule  never  applies  where  the  party 
had  no  opportunity,  in  the  regular  course  of  pleading,  of  setting 
the  matter  up.  I  see  no  good  reason  why  an  exception  should 
be  made  in  this  case. 

I  have  considered  the  question  as  though  the  defendant 
knew  of  the  discharge  at  the  time  of  pleading.  But  there  is  no 
evidence  of  that  fact,  nor  any  sufficient  ground  for  presuming 
it.  It  may  well  be  that  he  never  heard  of  the  discharge  until 
it  was  offered  in  evidence  on  the  trial.  The  bankrupt  law  did 
not  require  personal  service  of  notice  upon  creditors,  and  it  often 
happened  that  they  did  not  hear  of  the  application  until  after 
the  debtor  was  discharged.  I  well  recollect  that  in  several  mo- 
tions which  were  before  the  supreme  court  while  I  sat  in  it,  the 
creditor  made  affidavit  that  he  never  heard  of  the  proceedings 
in  bankruptcy  until  the  discharge  was  set  up  in  answer  to  an 
action.  It  will  be  presumed,  for  the  purpose  of  upholding  the 
discharge,  that  such  notice  was  given  as  the  statute  requires. 


SYRACUSE,  NOVEMBER,  1848.  5Q9 

Bingham  ».  "Weiderwax. 

(Norriss  v.  Goss,  2  Spear's  Law  Rep.  80.)  But  that  is  not 
actual  notice ;  nor  is  the  presumption  to  be  indulged  for  any  other 
purpose  than  that  of  giving  effect  to  the  discharge.  There  are 
many  cases  where  the  publication  of  a  notice  in  a  newspaper  is 
made  to  supply  the  place  of  process  to  bring  the  party  into 
court ;  and  such  notice  will  be  sufficient  to  uphold  the  proceed- 
ings. But  it  proves  nothing  against  the  party  in  relation  to 
any  other  matter. 

My  opinion  that  the  voluntary  branch  of  the  bankrupt  law,  im 
der  which  branch  this  discharge  was  obtained,  is  unconstitutional, 
has  already  been  declared  ;  (Sackett  v.  Andross,  5  Hill,  327  ;) 
and  time  and  reflection  have  only  served  to  confirm  me  in  that 
conclusion.  But  as  this  judgment  must  be  reversed  on  another 
ground,  it  is  not  necessary  that  the  court  should  pass  upon  that 
question  on  the  present  occasion. 

I  am  of  opinion  that  the  judgment  should  be  reversed,  and  a 
venire  de  novo  be  awarded. 

Ordered  accordingly. 


509 

12  4130 

qrt  *49E 

BINGHAM,  administrator,  &c.  appellant,  vs.  WEIDERWAX  and     42         832C 

SUTHERLAND,  respondents.  67 

70         *  5J 

The  covenant  of  seisin,  if  the  grantor  has  no  title,  is  broken  as  soon  as  the  deed  is 
executed,  and  the  grantee's  right  of  action  upon  such  covenant  becomes  imme- 
diately perfect. 

Nor  is  it  any  defence,  either  at  law  or  in  equity,  to  such  an  action,  that  the  preir- 
.  ises  have  been  sold  and  the  grantee  dispossessed  under  a  mortgage  which  tL 
grantee  assumed  to  pay,  and  subject  to  which  he  took  the  conveyance. 

In  the  action  upon  the  covenant  of  seisin,  for  the  purpose  of  ascertaining  the  mea- 
sure of  damages,  the  true  consideration,  and  the  fact  that  only  part  of  it  has  been 
paid,  may  be  shown  by  parol,  although  the  deed  expresses  a  different  considera- 
tion, and  acknowledges  that  the  whole  of  it  has  been  paid ;  and  there  is  therefore 
no  occasion,  in  such  a  case,  to  resort  to  a  court  of  equity  for  relief. 

It  seems,  that  on  the  dissolution  of  a  corporation,  the  title  to  real  estate  held  by  it 
reverts  back  to  its  original  grantor  and  his  heirs,  unless  there  is  some  provision  in 
the  charter,  or  some  other  statutory  provision  to  avert  that  consequence. 


510  CASES  IN  THE  COURT  OF  APPEALS. 

Bingham  r.  Weiderwax. 

APPEAL  from  chancery.  Henry  Weiderwax  and  Jamea 
Sutherland  filed  their  bill  in  chancery,  before  the  vice  chan- 
cellor of  the  third  circuit,  against  Anson  Bingham,  administrator 
of  the  estate  of  Jacob  S.  Van  Buren,  deceased,  stating  the  case 
in  substance  as  follows : 

On  the  15th  day  of  January,  1838,  the  said  Jacob  S.  Van 
Buren  applied  to  the  President,  Directors  and  Company  of  the 
Hillsdale  and  Chatham  Turnpike  Road,  a  body  politic  and 
corporate,  to  purchase  certain  real  estate  of  which  that  corpo- 
ration was  seized,  situated  in  the  town  of  Schodack,  county  of 
Rensselaer.  An  agreement  was  thereupon  made  between  the 
directors  of  the  corporation  and  Van  Buren  for  the  sale  of  such 
real  estate  for  the  price  of  $3850,  and  articles  of  agreement, 
dated  on  that  day,  were  drawn  up  and  executed  between  the 
complainant  Weiderwax,  as  secretary  of  the  corporation,  of  the 
first  part,  and  Van  Buren  of  the  second  part,  whereby  it  was 
provided  that  the  premises  should  be  conveyed  to  Van  Buren 
on  the  first  day  of  April  then  next ;  and  the  said  Van  Buren  on 
his  part  agreed,  in  the  same  articles,  to  pay  for  the  land  the 
sum  of  $3800,  as  follows :  he  was  to  assume  and  pay  two 
mortgages  which  encumbered  the  premises,  one  of  $2000  and 
the  other  of  $1000,  and  the  balance  of  the  purchase  money, 
being  $850,  he  was  to  pay  on  the  5th  day  of  May  then  next. 

On  the  said  first  day  of  April,  1838,  the  complainants  and 
Story  Gott,  since  deceased,  were  directors  of  the  corporation, 
and  together  constituted  a  majority  of  such  directors;  the  said 
Story  Gott  being  also  president,  and  the  complainant  Weider- 
wax being  secretary.  And  on  that  day  the  complainants  and 
said  Gott,  with  the  advice  and  consent  of  the  other  two  direc- 
tors, executed  under  their  hands  and  seals  to  said  Van  Buren 
a  conveyance  in  fee  of  the  said  premises,  purporting  to  be  for 
the  consideration  of  $3850,  and  subject  to  the  two  mortgages 
mentioned  in  the  aforesaid  articles  of  agreement,  covenanting 
in  and  by  such  deed  that  they,  the  said  complainants  and  Story 
Gott,  "  at  the  time  of  the  execution  of  the  deed,  were  the  true 
and  lawful  owners  of  the.  premises  in  right  of  the  President, 
Directors  and  Company  of  the  Hillsdale  and  Chatham  Turn 


SYRACUSE,  NOVEMBER,  1848.  51  J 


Bingham  ».  Weiderwax. 


pike  Road,  and  were  seized  of  a  perfect  estate  therein  in  fee 
simple,  and  had  lawful  right  and  authority  to  sell  and  convey 
the  same  in  manner  aforesaid"  The  bill  alleged  that  $3000, 
being  the  amount  of  the  two  mortgages  on  the  premises,  was 
deducted  from  the  purchase  money,  and  the  balance,  $850,  was 
paid  by  Van  Buren  to  the  corporation. 

The  bill  further  alleged,  that  at  the  time  of  the  conveyance 
the  title  of  the  premises  was  in  the  corporation,  that  all  parties 
to  the  conveyance  so  understood  it,  and  none  of  them  supposed 
the  title  to  be  in  the  complainants  and  Gott,  but  being  ignorant 
of  the  law  they  supposed  that  such  conveyance  would  vest  the 
title  in  the  grantee;  that  immediately  after  the  execution 
thereof,  said  Yan  Buren  went  into  possession  of  the  premises, 
and  occupied  the  same  personally,  or  by  his  tenants,  until  his 
death  in  1841,  and  that  after  his  death,  the  defendant,  as  ad- 
ministrator upon  his  estate,  received  the  rents  and  profits  until 
July  20,  1843. 

The  bill  also  alleged  that  neither  Yan  Buren  nor  the  defen- 
dant as  such  administrator,  ever  paid  the  two  mortgages  on  the 
premises,  that  the  owner  of  the  mortgage  of  $2000  in  March, 
1842,  commenced  proceedings  to  foreclose  the  same  in  chan- 
cery, and  obtained  the  usual  decree  of  foreclosure  and  sale  in 
May,  1843,  under  which  the  premises  were  sold  on  the  20th  of 
July,  1843,  and  purchased  for  the  sum  of  $2620  by  one  Griffith, 
who  took  possession  under  his  purchase.  In  October,  1844,  the 
defendant,  as  administrator  of  the  estate  of  Yan  Buren,  corn- 
men  :ed  an  action  at  law  against  the  complainants,  (Story  Gott 
having  previously  died,-)  upon  the  covenant  of  seisin  contained 
in  the  aforesaid  conveyance,  alleging  in  his  declaration,  as  a 
breach,  that  the  complainants  and  Gott  were  not  seized  of  an 
estate  in  fee  in  the  premises,  and  had  not  power  and  authority 
to  convey  the  same. 

The  bill  insisted  that  neither  Yan  Buren,  in  his  lifetime,  nor 
the  defendant  as  administrator,  since  his  death,  had  sustained 
any  damage  or  injury  by  any  act  or  omission  of  the  complain- 
ants, that  the  premises  were  sold  under  the  said  decree  of  fore- 
closure, by  reason  of  the  mere  neglect  of  said  Van  Buren  and 


512  CASES  IN  THE  COURT  OF  APPEALS. 


Bingham  t».  Wciderwax. 


of  the  defendant  as  administrator  to  pay  the  mortgage  ;  also 
that  the  deed  was  by  mistake  erroneously  drawn  in  this  respect, 
to  wit,  that  it  expressed  a  consideration  of  $3850,  and  yet  con- 
veyed the  premises  subject  to  the  said  two  mortgages  of  $3000, 
which  would  make  the  consideration  appear  to  be  $6850, 
whereas  the  true  consideration  was  as  before  stated  only  $3850. 
The  facts  stated  were  claimed  by  the  bill  to  constitute  an  equi- 
table defence  to  the  action  at  law  upon  the  covenant  of  seisin, 
and  the  prayer  was  for  a  perpetual  injunction  against  that  or 
any  other  suit  upon  such  covenant,  and  for  general  relief.  The 
defendant  demurred  to  the  bill  for  want  of  equity,  and  upon 
other  grounds  more  specially  stated. 

The  vice  chancellor  overruled  the  demurrer,  and  his  decision 
was  affirmed  by  the  chancellor  on  appeal.  The  defendant 
appealed  to  this  court. 

H.  Z.  Hayner,  for  the  appellant. 
J.  H.  Reynolds,  for  the  respondents. 

JEWETT,  C.  J.  It  is  assumed  by  the  chancellor  that  the 
land  was  not  lost  to  Van  Buren  in  consequence  of  a  defect  of 
title ;  but  that  if  the  mortgage  was  properly  foreclosed,  the  title 
had  been  lost  by  his  neglect  to  pay  it.  I  think  there  is  an  ob- 
vious mistake  in  that  conclusion.  The  bill  concedes  that  the 
title  to  the  lands  was  not  conveyed  to  Van  Buren,  although  he 
as  well  as  his  grantors  supposed  it  was,  by  the  deed  executed 
to  him.  The  complainants  and  the  administrator  of  Van 
Buren  have  since  discovered  that  Van  Buren's  grantors  were 
never  seized  of  any  estate  in  the  lands  ;  that  the  turnpike  cor- 
poration, at  the  time  of  executing  the  deed,  was  seized  of  these 
lands,  and  so  continued,  until  its  dissolution  in  1810.  How  then 
can  it  be  said  that  Van  Buren  lost  the  land  or  the  title  thereto, 
(which  he  never  had.)  by  neglecting  to  pay  the  mortgage?  If 
he  had  paid  it,  it  would  not  have  invested  him  or  his  grantors 
with  the  title.  Neither  lost  the  land  or  title  to  it,  by  the  fore- 
closure and  sale.  Payment  of  the  mortgage  by  Van  Buren  in 


SYRACUSE,  NOVEMBER,  1848.  5)3 


Bingham  v.  Weiderwax. 


iis  lifetime,  or  by  his  administrator  after  his  death,  could  have 
had  no  other  effect  than  to  iricrease  the  amount  of  damages 
.vhich  he  or  his  administrator  would  be  entitled  to  recover  of 
his  grantors  for  the  breach  of  their  covenant  of  seisin  contained 
in  their  deed  to  him.  Van  Buren's  right  of  action  for  the  breach 
of  that  covenant  was  perfect  the  instant  the  deed  was  executed. 
(Hamilton  v.  Willson,  4  John.  72  ;  McCarty  v.  Leggett,  3 
Hill,  134.)  It  did  not  arise  or  depend  in  any  respect  upon 
the  foreclosure  of  the  mortgage  and  sale  under  it.  Nor  did  the 
foreclosure  and  sale  in  the  least  affect  the  complainants'  rights 
or  liabilities. 

If  Van  Buren  had  paid  the  mortgages,  and  then  he  or  his 
administrator,  after  his  death,  had  brought  an  action  for  the 
breach  of  the  covenant  of  seisin,  it  would  not  have  been  a  good 
ground  in  equity  for  relief  against  their  covenant,  that  he  could 
have  compelled  the  corporation  before  its  dissolution  to  convey 
the  title  to  him.  He  would  have  the  right  to  rely  on  his  cove 
nant  and  take  his  remedy  by  action  upon  it. 

Van  Buren's  grantors  agreed  with  him  that  they  were  seized 
of  the  land,  and  it  was  their  business  to  see  that  their  covenant 
in  that  respect  was  kept,  when  they  executed  the  deed.  Equity 
may  compel  parties  to  execute  their  agreements,  but  has  no 
power  to  make  agreements  for  them,  or  to  substitute  one  for 
another.  And  besides,  it  appears  from  the  bill  that  the  cor- 
poration even  did  not  lose  the  land  or  its  title  by  the  fore- 
closure and  sale  under  the  mortgage.  It  had  lost  its  title 
nearly  or  quite  three  years  before,  in  1840,  by  its  dissolution. 
At  that  time,  and  for  that  cause,  the  title  reverted  back  to  its 
original  grantor  or  his  heirs,  there  being  no  provision  in  its 
charter  or  in  any  other  statute  to  avert  that  consequence 
upon  its  dissolution.  (Angel  $*  Ames  on  Corp.  128,  129  ;  2 
Kent's  Com.  305.) 

At  all  events  the  bill  shows  the  dissolution  of  the  corporation 
at  the  time  mentioned,  without  showing  that  the  title  to  their 
lands  was  saved  in  such  manner  as  that  Van  Buren,  or  his 
representatives,  could  by  any  means  have  acquired  it  under  the 
agreement  and  deed,  even  if  he  had  paid  the  mortgages  subse- 

VOL.  I.  65 


514  CASES  IN  THE  COURT  OF  APPEALS. 

Bingham  ».  Weiderwax. 

quently  and  before  foreclosure  ;  and  it  is  not  set  up  that  he  had 
agreed  to  pay,  or  that  the  holders  of  the  mortgages  were  bound 
to  receive,  or  would  have  received  payment  of  the  mortgages, 
or  either  of  them,  prior  to  the  time  of  the  dissolution  of  the 
corporation,  or  prior  to  the  time  of  the  death  of  Van  Buren ; 
or  that  he  at  any  time  knew  or  had  notice  that  he  could 
compel  the  corporation,  or  any  other  person,  to  convey  to 
him  the  title  to  said  land  ;  or  even  that  he  knew  or  was 
informed  that  his  grantors  were  not  seized  when  they  executed 
the  deed.  Therefore  it  seems  to  me  that  there  is  no  ground 
upon  which  to  sustain  this  bill,  founded  upon  the  neglect  of 
Van  Buren  to  pay  the  mortgages,  or  either  of  them. 

But  the  chancellor  held  that  even  if  the  bill  could  not  be 
sustained  to  the  whole  extent  claimed,  the  demurrer  was  prop- 
erly overruled  on  the  ground  that  the  complainants  were  en- 
titled to  relief  so  far  as  to  restrict  the  defendant's  claim  upon 
the  covenant  to  the  amount  of  the  purchase  money  actually 
paid  by  Van  Buren,  with  interest  thereon.  I  take  it  that 
the  principle  is  settled,  that  if  the  complainants  can  avail 
themselves  of  this  branch  of  their  defence  at  law,  and  that 
objection  is  raised  by  the  demurrer  to  the  bill  they  should  be 
left  to  make  it  in  the  suit  at  law ;  and  the  decree  overruling 
the  demurrer  cannot  be  sustained  on  that  ground.  (Colton 
v.  Ross,  2  Paige,  396,  400.)  And  I  think  it  is  well  settled, 
that  for  the  purpose  of  ascertaining  the  damages  to  which 
a  plaintiff  may  be  entitled  in  an  action  at  law  for  the  breach 
of  the  covenant  of  seisin  in  a  deed,  the  true  consideration, 
and  that  all  or  any  part  remains  unpaid,  may  be  shown,  not- 
withstanding a  different  consideration  is  expressed  in  the  deed, 
and  although  it  contains  an  acknowledgment  on  the  part  of 
the  grantors  that  it  has  been  paid  at  the  time  of  or  before  the 
execution  of  the  deed.  (McCrca  v.  Pnrmont,  16  Wend. 
460;  Shephard  v.  Little,  14  John.  210;  Morse  v.  Shattitck,  4 
N.  Hamp.  R.  229 ;  Grccnvault  v.  Davis,  4  Hill,  647 ;  Bel* 
don  v.  Seymour,  8  Conn.  R.  304;  Cowcn  c}*  Hill's  Notes., 
1441,  1442.) 


SYRACUSE,  NOVEMBER,  1848.  515 

Van  Leuven  v.  Lyke. 

My  conclusion  therefore  is  that  the  decisions  of  the  court  be- 
low are  erroneous  and  should  be  reversed,  and  the  bill  dismissed 
with  costs. 

Ordered  accordingly. 


515 

VAN  LEUVEN  vs.  LYKE  and  DUMOND.  s49  AD    346 

39  '403 

117  128? 

The  owner  of  a  domestic  animal  is  not  in  general  liable  for  an  injury  committed  by     120  2319 

such  animal,  unless  it  be  alleged  and  shown  that  the  defendant  had  notice  of  its    154  »225 

vicious  propensity.  _Z_T_r      114 

But  if  the  animal  is  unlawfully  in  the  close  of  another  and  commits  the  mischief 
there,  the  owner  is  liable  without  alleging  or  proving  a  scienter.  Per  JEW- 
ETT, C.  J. 

And  in  such  cases  the  declaration  should  be  for  breaking  and  entering  the  close, 
and  the  particular  mischief,  e.  g.  the  killing  of  another  domestic  animal,  should  be 
alleged  in  aggravation  of  the  trespass. 

The  declaration  in  a  justice's  court  alleged  that  the  defendants'  sow  and  pigs  man- 
gled and  tore  a  cow  and  calf  of  the  plaintiff  so  that  they  died.  The  evidence  tend- 
ed to  show  that  the  injury  was  committed  as  alleged,  and  that  it  was  done  while 
the  sow  and  pigs  were  trespassing  in  the  plaintiff's  close.  Hdd  that  the  plaintiff 
could  not  recover  for  the  reason  that  there  was  no  allegation  or  proof  of  a  scienter, 
and  no  allegation  of  a  breach  of  the  plaintiff 's  close. 

VAN  LEUVEN  sued  Lyke  and  Dumond  in  a  justice's  court 
and  recovered  judgment,  which  was  affirmed  by  the  common 
pleas  on  certiorari,  and  reversed  by  the  supreme  court  on  error. 
(See  4  Denio,  127.)  The  plaintiff  brought  error  to  this  court. 
The  case  is  sufficiently  stated  in  the  opinion  of  the  court, 
as  delivered  by  JEWETT,  C.  J. 

M.  Schoonmaker,  for  the  plaintiff  in  error. 
T.  R.  Westbrook,  for  the  defendants  in  error. 

JEWETT,  C.  J.  It  is  alleged  in  the  plaintiff's  declaration 
"  that  on  the  27th  day  of  November,  1844,  at  &c.  the  defen- 
dants were  the  owners  of  a  certain  sow  and  pigs,  which  sow 


516  CASES  IN  THE  COURT  OF  APPEALS. 

Van  Leuvcn  r.  Lyke. 

and  pigs,  to  wit,  on  the  day  and  year  aforesaid,  to  wit,  at  the 
place  aforesaid,  bit,  damaged  and  mutilated  and  mangled  a 
certain  cow  and  calf  of  the  plaintiff,  while  the  said  cow  was  in 
the  act  of  calving,  so  that  said  cow  and  calf  both  died,  to  the 
plaintiff's  damage  $50."  To  which  the  defendants  pleaded 
the  general  issue.  There  was  evidence  given  on  the  trial,  suf- 
ficient to  warrant  the  jury  in  finding  that  the  plaintiff's  cow 
and  calf  were  destroyed  by  the  defendants'  sow  and  pigs  in  the 
manner  set  forth  in  the  declaration,  upon  the  land  of  the  plain- 
tiff, where  the  sow  and  pigs  were  at  the  time  of  committing  the 
said  injury.  But  there  is  no  allegation  in  the  declaration,  or 
evidence  given  on  the  trial,  that  swine  possess  natural  propen- 
sities which  lead  them,  instinctively,  to  attack  or  destroy  ani- 
mals in  the  condition  of  the  plaintiff's  cow  and  calf.  Nor  i* 
there  any  allegation  or  evidence  that  the  defendants  previously 
knew  or  had  notice  that  their  swine  were  accustomed  to  do 
such  or  similar  mischief,  or  that  the  swine  broke  and  entered 
the  plaintiff's  close  and  there  committed  the  mischief  com- 
plained of. 

It  is  a  well  settled  principle  that  in  all  cases  where  an  action 
of  trespass  or  case  is  brought  for  mischief  done  to  the  person  or 
personal  property  of  another  by  animals  mansuetcB  natures, 
such  as  horses,  oxen,  cows,  sheep,  swine,  and  the  like,  the  owner 
must  be  shown  to  have  had  notice  of  their  viciousness  before  he 
can  be  charged,  because  such  animals  are  not  by  nature  fierce 
or  dangerous,  and  such  notice  must  be  alleged  in  the  declara- 
tion ;  but  as  to  animals  fcrcc  natures,  such  as  lions,  tigers, 
and  the  like,  the  person  who  keeps  them  is  liable  for  any  dam- 
age they  may  do  wit/tout  notice  ;  on  the  ground  that,  by  nature 
such  animals  arc  fierce  and  dangerous.  (9  Bac.  Abr.tlt.  Tres- 
pass, I,  505,  G ;  Jenkins  v.  Turner,  1  Ld.  Raym.  109 ;  Ma- 
son v.  Keeling,  id.  GOG  ;  &  C.  12  Mod.  332  ;  Rex  v.  Utiggins, 
2  Ld.  Raym.  1583  ;  1  Chit.  PL  cd,  1812,  69,  70  ;  Vrooman  v. 
Lawyer,  13  John.  R.  339 ;  Kinkley  v.  Emerson,  4  Cowen, 
351.)  But  this  rule  does  not  apply  where  the  mischief  is  done 
by  such  animals  while  committing  a  trespass  upon  the  close  of 
another. 


SYRACUSE,  NOVEMBER,  1848.  517 

Van  Leuven  v.  Lyke. 

The  common  law  holds  a  man  answerable  not  only  for  his 
own  trespass,  but  also  for  that  of  his  domestic  animals ;  and  as 
it  is  the  natural  and  notorious  propensity  of  many  of  such  ani- 
mals, such  as  horses,  oxen,  sheep,  swine,  and  the  like,  to  rove, 
the  owner  is  bound  at  his  peril  to  confine  them  on  his  own  land, 
and  if  they  escape  and  commit  a  trespass  on  the  lands  of  another, 
unless  through  defect  of  fences  which  the  latter  ought  to  repair, 
the  owner  is  liable  to  an  action  of  trespass  quare  clausum  fre- 
git,  though  he  had  no  notice  in  fact  of  such  propensity.  (3 
El.  Com.  211 ;  1  Chit.  PL  70.)  And  where  the  owner  of  such 
animals  does  not  confine  them  on  his  own  land,  and  they  es- 
cape and  commit  a  trespass  on  the  lands  of  another,  without 
the  fault  of  the  latter,  the  law  deems  the  owner  himself  a  tres- 
passer for  having  permitted  his  animals  to  break  into  the  enclo- 
sure of  the  former  under  such  circumstances.  And  in  declaring 
against  the  defendant  in  an  action  for  such  trespass,  it  is  com- 
petent for  the  plaintiff  to  allege  the  breaking  and  entering  his 
close  by  such  animals  of  the  defendant,  and  there  committing 
particular  mischief  or  injury  to  the  person  or  property  of  the 
plaintiff,  and,  upon  proof  of  the  allegation,  to  recover  as  well  for 
the  damage  for  the  unlawful  entry  as  for  the  other  injuries  so 
alleged,  by  way  of  aggravation  of  the  trespass,  without  alleging 
or  proving  that  the  defendant  had  notice  that  his  animals  had 
been  accustomed  to  do  such  or  similar  mischief.  The  breaking 
and  entering  the  close  in  such  action  is  the  substantive  allega- 
tion, and  the  rest  is  laid  as  matter  of  aggravation  only. 

This  principle  is  recognized  as  sound  by  several  adjudged 
cases.  In  the  case  of  Beckwith  v.  Shordike  and  Hatch,  (4 
Burr.  2092.)  the  action  was  trespass  for  entering  the  plaintiff's 
close  with  guns  and  dogs  and  killing  his  deer.  The  evidence 
showed  that  the  defendants  entered  with  guns  and  dogs,  into  a 
close  of  the  plaintiff  adjoining  to  his  paddock,  and  that  their 
dog  pulled  down  and  killed  one  of  the  plaintiff's  deer.  It  was 
held  to  be  sufficient  evidence  to  prove  the  defendants  tres- 
passers, and  they  were  held  liable  for  the  injury  done  by  their 
dog,  although  it  was  not  shown  that  they  had  any  knowl 


518  CASES  IN  THE  COURT  OF  APPEALS. 

Van  Leuven  v.  Lyke. 

edge  or  notice  of  the  propensity  of  the  dog  to  do  such  or  similar 
injury. 

In  Angus  v.  Radin,  (2  South.  Rep.  815,)  the  action  waa 
trespass  for  the  defendant's  oxen  breaking  into  the  enclosure  of 
the  j^aintiff  and  there  goring  his  cow,  so  as  to  kill  her ;  and 
upon  the  ground  that  the  defendant  had  neglected  to  confine 
his  oxen  on  his  own  land  and  that  they  were  trespassing  on  the 
land  of  the  plaintiff,  he  was  held  liable  for  the  injury  done,  al- 
though it  was  not  alleged  or  proved  that  he  knew  or  had  notice 
of  the  propensity  of  his  oxen  to  commit  such  an  injury.  And 
so  in  Dolph  v.  Ferris,  (7  Watts  <$f  Serg.  367,)  where  the  ac- 
tion was  trespass  before  a  justice  of  the  peace  and  there  tried 
without  any  declaration  having  been  filed  ;  therefore  the  comt 
held  that  the  case  must  be  considered  as  if  the  case  had  been 
tried  on  the  most  favorable  declaration  for  the  plaintiff,  which 
the  evidence  would  have  warranted.  The  evidence  was  that 
the  bull  of  the  defendant,  which  was  running  at  large,  broke 
and  entered  into  the  enclosure  of  the  plaintiff,  where  his  horse 
was  feeding  on  the  grass  growing  therein,  and  gored  him  so  that 
he  died  by  reason  thereof  in  a  few  days.  The  court  held  it  to 
be  clear  from  the  evidence,  that  the  defendant  might  have  been 
declared  against  for  having  broken  and  entered  the  close  of  the 
plaintiff,  and  the  grass  and  herbage  of  the  plaintiff  there  lately 
growing  with  his  bull  eaten  up,  trod  down  and  consumed,  and 
might  also  have  been  charged  in  the  same  declaration  with 
having  killed  or  destroyed  the  plaintiff's  horse  or  colt  with 
his  bull. 

But  in  the  case  under  consideration,  there  is  no  allegation, 
charging  the  defendants'  swine  with  doing  any  act  for  which 
the  law  holds  the  defendants  accountable  to  the  plaintiff  with- 
out alleging  and  proving  a  scienter.  Had  the  plaintiff  stated 
in  his  declaration  such  ground  of  liability,  or  had  charged  that 
the  swine  broke  and  entered  his  close  and  there  committed  the 
mischief  complained  of,  and  sustained  his  declaration  by  evi- 
dence, I  am  of  opinion  that  he  would  have  been  entitled  to  re- 
cover all  the  damages  thus  sustained  ;  but  as  he  has  not  stated 
in  his  declaration  either  ground  of  liability,  the  defendants  ought 


SYRACUSE,  NOVEMBER,  1848.  5JQ 


Worrall  ».  Parmelee. 


not  to  be  deemed  to  have  waived  the  objection  by  not  making 
it  specifically  before  the  justice.  I  think  the  judgment  should 
be  affirmed. 

Judgment  affirmed. 


If, 

/ 

WORRALL  vs.  PARMELEE.  8 

29 

36 
The  declarations  of  a  former  owner  of  personal  property  are  not  admissible  in  evi-      ^Q 

dence  to  prove  a  sale  of  such  property  to  a  party  claiming  under  him.  47 

And  where  such  evidence  was  duly  objected  to,  and  the  party  objecting  afterward*      54 
called  as  a  witness  the  person  whose  declarations  had  been  given  in  evidence,    ..„„ 
and  examined  him  in  regard  to  the  alleged  sale;  held,  no  waiver  of  the  objection,        ^  j£ 
An  error  in  the  court  below,  which  on  its  face  could  do  no  possible  injury,  is  no        2  K 
cause  for  reversing  a  judgment.     But  where  the  error  is  in  the  admission  of  illegal 
evidence  which  bears  in  the  least  degree  on  the  result,  it  cannot  be  disregarded. 
Per  JEWETT,  C.  J. 

Accordingly,  where  illegal  evidence  tending  to  establish  a  certain  fact  was  received 
after  objection  duly  made;  held,  that  the  error  could  not  be  disregarded,  although 
the  party  objecting  afterwards  introduced  evidence  which  tended  to  establish  tht 
same  fact. 

ON  error  from  the  supreme  court.  Richard  W.  Parmelee 
sued  William  H.  Worrall,  in  July,  1846,  before  a  justice  of  the 
peace,  and  declared  in  trespass  for  entering  his  close  and  cutting 
down  and  carrying  away  a  field  of  rye.  The  defendant  plead- 
ed not  guilty,  and  gave  notice  that  he  would  show  a  license  to 
enter  from  the  grantor  of  the  plaintiff,  and  that  the  rye  was  his 
property. 

On  the  trial  the  plaintiff  proved  that  he  was  in  possession  of 
the  premises  at  the  time  of  the  alleged  trespass,  which  was 
about  July  1,  1846,  and  that  he  had  been  in  possession  since 
the  1st  of  May  previous;  also  that  the  defendant  entered  and 
cut  and  carried  away  the  rye  after  being  forbidden  so  to  do. 
The  plaintiff  then  rested. 

The  defendant  proved  that  the  rye  was  sown  by  one  Brower, 
who  had  been  a  tenant  of  the  premises  under  one  Gridley  from 
whom  the  plaintiff  received  the  possession,  and  that  as  such 


520     CASES  IN  THE  COURT  OF  APPEALS. 


Worrall  r.  Parmelee. 


tenant  Brower  was  entitled  to  the  crop.  The  defendant  then 
offered  to  prove  certain  declarations  of  Brower  to  the  effect  that 
he  had  sold  the  rye  to  the  defendant.  This  was  objected  to. 
but  the  justice  overruled  the  objection,  and  the  evidence  was 
thereupon  given. 

The  plaintiff  then  called  the  said  Brower  as  a  witness,  and 
proved  by  him  that  he  sold  the  rye  to  the  plaintiff  after  the  first 
of  May,  1846.  The  plaintiff  also  examined  the  witness  in  re- 
gard to  the  alleged  sale  to  the  defendant,  and  his  evidence 
on  that  subject  tended  strongly  to  show  that  before  the  1st  of 
May  he  had  sold  the  rye  to  the  defendant.  The  justice  ren- 
dered judgment  for  the  defendant,  which  being  removed  into 
the  common  pleas  by  cerliorari,  was  affirmed  in  that  court. 
The  plaintiff  brought  error  into  the  supreme  court  where  the 
judgment  was  reversed.  The  defendant  brings  error  to  this 
court. 

/.  H.  Weeks,  for  the  plaintiff  in  error. 
C.  W.  Swift,  for  the  defendant  in  error. 

JEWETT,  C.  J.  It  may  be  inferred  from  the  facts  proved, 
that  prior  to  April  or  May,  1846,  Gridley  was  the  owner  of  the 
land  on  which  the  trespass  is  alleged  to  have  been  committed 
by  the  defendant,  and  that  while  thus  being  the  owner,  Brower 
had  occupied  the  premises  as  his  tenant  until  some  three  months 
prior  to  May,  and  had  sowed  it  with  rye  ;  to  whom  the  crop  be- 
longed at  the  time  Gridley  sold  and  delivered  possession  of  the 
premises  in  April  or  May  to  Parmelee.  It  does  not  seem,  from 
the  justice's  return,  that  Parmelee  claimed  to  have  become  the 
owner  of  the  rye  as  purchaser  of  the  land  on  which  it  was  then 
growing.  But  he,  as  well  as  Worrall,  respectively  claimed  the 
crop  as  purchasers  from  Brower.  Parmelee  showed  that  prior 
to  and  at  the  time  of  the  alleged  trespass  he  was  in  the  actual 
possession  of  the  premises,  that  the  defendant  entered  upon  the 
land,  cut  and  carried  away  the  rye,  of  the  value  of  from  $30 


t 

SYRACUSE,  NOVEMBER,  1848.  521 

Worrall  v.  Parmelee. 

to  $40;  and  then  rested  ;  having  clearly  shown  aprimafacie 
right  to  recover  for  the  injury  sustained. 

The  defendant  then  attempted,  in  his  defence,  to  show  that 
he  was  the  owner  of  the  rye  by  purchase  from  Brower.  To  do 
this  he  proposed  to  give  in  evidence  the  declarations  of  Brower 
to  that  effect.  The  plaintiff  objected  to  such  evidence  as  incom- 
petent ;  but  the  justice  overruled  the  objection  and  admitted 
the  evidence.  The  defendant  then  proved  by  two  witnesses 
that  Brower  on  two  different  occasions  in  effect  said  that  he 
had  sold  the  rye  to  the  defendant,  and  then  rested  his  defence. 
The  plaintiff  introduced  Brower  as  a  witness,  who  testified  that 
the  bargain  which  he  made  with  the  defendant  for  the  sale  of 
the  rye,  was  a  conditional  one,  that  is,  he  was  to  pay  him  a 
certain  sum  for  it  the  first  of  May,  which  he  failed  to  do,  and 
had  not  at  any  time  paid  him  ;  that  after  the  first  of  May  he 
sold  the  rye  to  the  plaintiff,  who  paid  him  for  it. 

The  decision  of  the  justice  upon  the  objection  taken  to  the 
admission  of  the  evidence  of  Browers  declarations,  was  clearly 
erroneous.  Such  evidence  is  nothing  more  than  hearsay. 
(Paige  v.  Cagwin,  7  Hill,  361 ;  Beach  v.  Wise,  1  id.  612.) 

But  it  is  insisted  in  behalf  of  the  defendant,  that  the  plaintiff 
waived  his  objection  to  such  evidence,  by  introducing  Brower 
as  a  witness  in  the  cause ;  upon  the  principle  that  the  case 
shows  that  there  is  enough,  exclusive  of  the  illegal  evidence, 
to  sustain  the  judgment  of  the  justice.  There  are  many  cases 
which  hold  that  an  error  in  the  court  below,  which  on  its  face 
and  by  legal  necessity,  could  do  no  injury,  is  not  cause  for  a 
reversal  of  the  judgment.  But  where  the  error  is  in  the  admis- 
sion of  illegal  evidence  which  bears  in  the  least  degree  on  the 
question  in  issue,  it  cannot  be  disregarded.  ( The  People  v. 
Wiley,  3  Hill,  194,  214.)  So  also  where  the  sole  question  on 
a  bill  of  exceptions  turned  on  the  competency  of  a  witness  pro- 
duced to  testify  to  a  fact  fully  proved  by  two  other  witnesses,  it 
was  held  that  the  court  could  not  reject  the  evidence  of  such 
witness  as  unnecessary,  on  the  ground  that  it  was  impossible  to 
say  that  the  jury  disregarded  it;  and  the  witness  being  ad- 

VOL.  I.  66 


522 


CASES  IN  THE  COURT  OF  APPEALS. 


Hill  ».  Covell. 


judged  incompetent,  the  judgment  in  the  court  below  was  re- 
versed. (Marquand  v.  Webb,  16  John.  90.)  And  to  the  same 
effect  is  the  case  of  Osgood  v.  The  President  and  Directors 
of  the  Manhattan  Co.  (3  Cowen,  612.)  The  judgment  of  the 
supreme  court  should  be  affirmed. 

Judgment  affirmed. 


522 


3 

s  6 

s  6 

26 

52 

57 


'329 
378 
381 
594 
!256 
»  33 


HILL  and  SANFORD  vs.  COVELL. 

A  special  verdict  should  state  facts  and  not  merely  the  evidence  of  facts,  so  as  to 
refer  to  the  court  only  the  consideration  of  questions  of  law. 

To  authorize  a  judgment  for  the  plaintiff  upon  a  special  verdict  in  an  action  of  tro- 
ver, the  verdict  should  either  find  a  conversion  of  the  property,  or  state  such  facts 
as  to  leave  the  question  of  conversion  one  of  law  merely. 

A  demand  and  refusal  are  only  evidence  of  conversion,  and  may  be  repelled  by 
proof  showing  that  a  compliance  with  the  demand  was  impossible. 

Therefore,  where  in  trover  the  special  verdict  stated  a  demand  and  refusal,  but  did 
not  show  that  the  property  was  in  the  possession  of  the  defendants  at  the  time  of 
such  demand,  there  being  also  other  evidence  stated  in  the  verdict  tending  to  show 
that  the  property  was  not  then  in  their  possession ;  field,  not  sufficient  to  entitle 
the  plaintiff  to  judgment  on  the  verdict. 

And  although  the  special  verdict  also  found  that  the  defendants  had  sold  the  prop- 
erty, yet  it  appearing  that  they  had  authority  to  sell  it  on  account  of  the  plaintiff, 
and  the  fact  not  being  negatived  that  the  sale  was  for  the  purpose  and  in  the 
manner  authorized  ;  held,  that  the  court  could  not  adjudge  that  there  had  been  a 
conversion. 


COVELL  sued  Hill  and  Sanford  in  the  supreme  court,  in  tro- 
ver, for  52,900  feet  of  pine  lumber.  The  cause  was  tried  at  the 
Chemung  circuit  in  May,  1844,  when  the  jury  found  a  special 
verdict,  assessing  the  plaintiff's  damages  contingently  at  $500, 
on  which  the  supreme  court  gave  judgment  for  the  plaintiff 
For  a  statement  of  the  case  and  the  opinion  of  the  supreme 
court,  see  4  Denio,  323.  The  defendants  bring  error  to  this 
court. 


SYRACUSE,  NOVEMBER,  1848.  538 


Hill  r.  Covell. 


S.  Stevens,  for  the  plaintiffs  in  error. 
N.  Hill,  Jr.  for  the  defendant  in  error. 

GARDINER,  J.  In  the  action  of  trover  the  jury  may  un- 
doubtedly refer  the  question  of  a  conversion  to  the  court  as  a 
question  of  law.  But  in  order  to  do  this,  the  record  must  state 
every  fact  necessary  to  the  legal  conclusion  which  will  then  be 
declared  by  the  court.  The  difficulty  in  the  present  case  is 
that  the  special  verdict  neither  finds  a  conversion  in  terms,  nor 
the  facts  that  will  enable  us  to  determine  it  as  a  question  of  law 
in  favor  of  the  plaintiff. 

To  maintain  this  action  the  plaintiff  must  establish  property 
in  himself,  and  a  tortious  conversion  by  the  defendant.  In  this 
case  the  special  verdict  has  not  found  in  terms  that  the  plain- 
tiff was  the  owner  of  the  lumber,  and  if  this  fact  is  to  be  im- 
plied against  the  defendants  from  the  agreement  between  Coveli 
and  Potter,  it  appears  from  that  instrument  that  although  the 
title  was  to  be  held  by  the  plaintiff,  yet  Potter  was  constituted 
his  agent  to  deliver  the  lumber  to  the  defendants,  to  employ 
them  to  sell  it,  and  to  account  for  the  avails  to  him  and  the 
plaintiff  respectively,  according  to  the  agreement.  The  defen- 
dants, therefore,  upon  the  receipt  of  the  lumber  from  Potter, 
acquired  by  the  assent  of  the  plaintiff  a  rightful  possession  coup- 
led with  an  authority  to  dispose  of  the  property. 

The  sale  of  the  lumber  subsequently  by  the  defendants  was 
consistent  with  the  rights  of  the  plaintiff  as  general  owner,  and 
of  itself,  consequently,  would  not  constitute  a  conversion.  Now 
the  jury  have  found  that  the  defendants  disposed  of  the  greater 
part  of  the  lumber  in  1842,  without  stating  the  time  more  par- 
ticularly or  the  quantity,  and  the  residue  in  1843.  Their  ver- 
dict does  not  state  however  whether  any  of  the  property  was 
sold  in  a  manner  or  for  a  purpose  not  authorized  by  the  agree- 
ment set  forth,  or  even  by  the  express  directions  of  the  plaintiff 
contained  in  his  letter  of  the  8th  of  October.  These  are  all 
facts  which  we  must  presume  in  order  to  determine  the  question 
of  a  tortious  conversion. 


524  CASES  IN  THE  COURT  OF  APPEALS. 


Hill  v.  Covell. 


It  is  true  that  the  special  verdict  set  forth  a  demand  of  the 
lumber  by  the  plaintiff  in  April,  1843,  and  a  refusal  by  the  de- 
fendants to  deliver  the  same,  unless  the  advances  made  by  the 
latter  to  Potter  were  first  paid.  But  the  jury  have  not  found 
the  fact  that  any  part  of  the  lumber  was  then  in  the  possession 
or  under  the  control  of  the  defendants ;  on  the  contrary  it  appears 
affirmatively  from  the  verdict  that  the  greater  part  of  the  prop- 
erty had  been  sold,  and  that  all  might  have  been,  prior  to  the 
demand.  A  demand  and  refusal  are  but  evidence  of  a  conver- 
sion. As  evidence  it  may  be  met  and  repelled  by  proof  that  a 
compliance  with  the  demand  was  impossible.  (5  Burr.  2825  ; 
1  Cowp.  439.)  It  is  sufficient  to  say  that  we  have  only  evi- 
dence in  this  case  tending  to  prove  a  conversion.  We  are  first 
to  presume  certain  facts,  and  then  declare  the  law  applicable  to 
them.  The  first  is  the  exclusive  province  of  the  jury.  The 
office  of  a  special  verdict  is  to  present  facts,  and  not  merely  the 
evidence  of  facts.  (8  Cowerts  R.  413,  414.)  It  was  observed 
by  C.  J.  Dallas,  <:  that  sufficient  facts  must  be  stated  on  the  re- 
cord to  refer  to  the  court  the  consideration  of  the  question  of 
law."  (8  Price's  R.  383.)  This  is  an  intelligible  rule  which 
obviously  has  not  been  complied  with  in  this  case.  The  defects 
in  the  special  verdict  were  not  alluded  to  in  the  supreme  court. 
They  present,  however,  an  insuperable  obstacle  to  a  decision  by 
this  court  of  the  questions  intended  to  be  presented  by  these 
parties.  There  must  be  a  new  trial  upon  which  the  facts  may 
be  ascertained  and  properly  presented  upon  the  record. 

Ordered  accordingly. 


SYRACUSE,  NOVEMBER,  1848.  525 


Pitts  v.  Wilder. 


525 

34  ^03 

Tsr  36  '483 

PITTS  vs.  WILDER.  44         ^ 

69  '407 

1  TC       *9 
The  declarations  of  a  person  in  possession  of  lands  are  competent  evidence  against        £  ^ 

himself  and  all  persons  claiming  under  him,  for  the  purpose  of  showing  the  cha-        «  AbD 
racter  of  his  possession,  and  by  what  title  he  claims.  2  Tr       1 

Where  A.  being  in  possession  of  lands  and  claiming  to  hold  under  a  contract  from 
the  Holland  Land  Company,  executed  to  B.  an  instrument  purporting  to  grant 
the  absolute  right  to  flow  the  lands  by  means  of  a  mill  dam,  B.  knowing  the  man- 
ner in  which  A.  claimed  to  hold ;  keld,  in  an  action  on  the  case  for  flowing  the 
lands,  that  such  instrument  was  not  admissible  in  evidence  to  lay  the  foundation 
of  a  user  adverse  to  the  plaintiff  who  had  acquired  the  title  of  the  Holland  Land 
Company. 

ON  error  from  the  supreme  court,  where  Wilder  recovered 
judgment  against  Pitts  in  an  action  on  the  case.  The  facts 
are  stated  in  the  opinion  of  Jewett,  C.  J. 

S.  Stevens,  for  the  plaintiff  in  error. 
N.  Hill,  Jr.  for  the  defendant  in  error. 

JEWETT,  C.  J.  Wilder  brought  an  action  upon  the  case 
against  Pitts  for  flowing  his  lands  by  means  of  a  mill  dam, 
maintained  by  him  across  the  Oak  Orchard  creek,  in  the  town 
of  Ridgeway,  in  the  county  of  Orleans.  The  suit  was  com- 
menced in  July  and  tried  in  October,  1843. 

On  the  trial  it  was  admitted  that  the  defendant  took  posses- 
sion of  the  mill  and  dam  in  question  in  the  spring  of  1838,  un- 
der a  deed  bearing  date  the  8th  of  May  in  that  year.  The 
plaintiff,  to  show  title  in  himself  of  the  premises  claimed  to  be 
flowed,  gave  in  evidence  a  deed  from  William  Willink  and 
others,  constituting  the  Holland  Land  Company,  to  him  con- 
veying sixty-five  acres  of  land,  part  of  the  premises  in  question, 
bearing  date  the  3d  of  January,  1834 ;  and  also  another  deed 
from  the  same  grantors  to  him,  conveying  one  hundred  acres, 
also  part  of  the  premises  in  question,  bearing  date  13th  of  Jan- 
uary, 1832,  both  of  which  were  acknowledged  and  recorded  at 
about  the  time  of  their  respective  dates.  The  plaintiff  also 


526  CASES  IN  THE  COURT  OF  APPEALS. 


PitU  ».  Wilder. 


proved  possession  of  the  premises  described  in  both  deeds,  and 
that  a  portion  of  these  lands  being  wild  and  uncultivated  had 
been  flowed  a  number  of  years  by  reason  of  the  defendant's 
dam,  and  the  amount  of  the  damages  sustained. 

The  defendant  proved  that  one  Gilbert  Howell  erected  the 
first  dam  in  1816,  and  built  a  saw  and  grist  mill,  and  occupied 
them  until  the  year  1836 ;  that  the  dam  had  been  maintained 
ever  since,  except  when  carried  away  by  floods,  and  then  had 
been  rebuilt  in  a  reasonable  time ;  and  that  said  Howell  and 
one  Isaac  Bennett  entered  into  a  written  agreement,  which 
was  produced,  bearing  date  the  10th  day  of  October,  1815, 
which  the  defendant's  counsel  offered  to  read  in  evidence,  in 
and  by  which  agreement  the  absolute  right  to  flow  the  land 
claimed  by  the  plaintiff,  and  proved  to  have  been  flowed,  pur- 
ported to  have  been  granted  and  conveyed  by  Bennett  to  Howell, 
his  heirs  and  assigns  ;  offering  to  show  at  the  same  time  a  regu- 
lar claim  of  title  and  possession  from  Howell  to  the  defendant 
of  the  mill  dam  and  mills,  and  the  right  so  attempted  to  be 
conveyed.  The  plaintiff's  counsel  objected  to  the  evidence, 
which  objection  the  judge  sustained  and  the  defendant  excepted. 
Howell  had  previously  testified  that  Bennett  told  him  that  he 
occupied  the  flat  lands,  (the  lands  overflowed,)  by  an  article  of 
agreement  from  the  land  office  at  Batavia.  As  to  the  evidence 
of  what  Bennett  told  Howell  about  his  title,  the  counsel  foi 
the  defendant  objected  as  irrelevant,  but  the  judge  overruled 
the  objection  and  the  defendant's  counsel  excepted. 

The  evidence  given  by  the  parties  upon  the  question  whether 
the  plaintiff's  land  had  been  always  flowed  to  the  same  extent 
since  the  erection  of  the  dam  in  1816,  or  whether  within  six  or 
eight  years  prior  to  the  commencement  of  the  suit,  the  dam 
had  been  raised  higher  by  the  defendant,  and  that  since  that 
time  the  said  lands  had  been  flowed  to  a  greater  extent  by 
reason  thereof,  was  conflicting.  The  plaintiff  had  a  verdict  and 
a  bill  of  exceptions  was  signed,  upon  which  a  new  trial  was 
moved  for  but  denied,  and  judgment  rendered  for  the  plaintiff 
upon  the  verdict.  Two  questions  are  made  in  this  case,  1st. 
The  defendant  insists  that  the  declarations  made  by  Bennett 


SYRACUSE,  NOVEMBER,  1848.  527 


Pitts  v.  Wilder. 


to  Howell,  that  he  occupied  the  flat  lands  by  an  article  from 
the  land  office  at  Batavia,  were  irrelevant  evidence.  They 
were  made  to  Howell  at  the  time  Bennett  was  in  possession  of 
the  premises,  and  at  the  time  he  entered  into  the  agreement 
with  Ho  well  conveying,  or  purporting  to  convey  to  him,  a  right 
or  privilege  to  flow  the  lands.  The  defendant  claims  under 
Howell,  who  claims  through  Bennett  that  right.  To  show  the 
character  of  his  possession,  those  declarations  would  have  been 
good  as  against  Bennett,  and  of  consequence  against  all  who 
claim  under  him.  (Jackson  v.  Bard,  4  John.  230.)  I  think 
the  objection  was  correctly  disposed  of. 

2.  The  defendant  insists  that  the  judge  erred  in  sustaining 
the  objection  to  his  offer  to  read  the  agreement  made  between 
Howell  and  Bennett  in  evidence,  accompanied  by  evidence 
showing  that  there  had  been  a  regular  claim  of  title  and  pos- 
session from  Howell  to  the  defendant  of  the  mill  dam,  mills, 
and  the  right  so  attempted  to  be  conveyed.  As  the  evidence 
stood,  no  title  to  the  premises  or  any  portion  of  them  had  ever 
vested  in  Bennett ;  and  for  more  than  twenty  years  before  the 
suit  was  commenced  he  had  not  been  in  possession.  All  the 
right  which  it  was  shown  Bennett  had  or  claimed  to  have,  to 
occupy  as  he  did,  for  six  or  eight  years  subsequently  from  1815, 
was  under  an  article  of  agreement  from  the  office  of  the  Hol- 
land Land  Company  at  Batavia.  The  plaintiff  succeeded  to 
the  title  of  the  Holland  Land  Company  to  the  premises,  in  part, 
in  1832,  and  to  the  residue  in  1834,  and  went  into  possession. 
The  agreement  between  Bennett  and  Howell,  which  was  offered 
in  evidence,  was  wholly  irrelevant.  It  did  not  convey  to  Howell 
a  title  sufficient  to  vest  an  adverse  possession,  or  adverse  user, 
(Jackson  v.  Frost,  5  Coiven,  346,)  because  Bennett,  at  the  time 
he  entered  into  the  agreement,  did  not  pretend  to  have  any  title 
to  the  premises  himself,  and  this  was  known  to  Howell.  And 
besides,  the  defendant  did  not  pretend  that  he  derived  title  to 
the  right  to  flow  in  any  other  way  than  by  an  uninterrupted 
adverse  user  of  twenty  years  ;  and  whether  Bennett  executed 
such  an  agreement  or  instrument  was  a  matter  of  no  sort  of 
consequence.  The  evidence  offered  in  connection  with  reading 


528     CASES  IN  THE  COURT  OF  APPEALS. 


Gardner  v.  Heart. 


the  instrument,  could  not  aid  the  defendant ;  and  if  it  had  been 
offered  or  so  considered,  independent  of  the  agreement  or  instru 
ment,  I  do  not  see  its  relevancy  or  competency.  That  branch 
of  the  offer  was  to  show  a  regular  claim  of  title  and  possession 
from  Howell  to  the  defendant  of  the  mill  dam,  mills,  and  the 
right  so  attempted  to  be  conveyed.  Now  a  claim  of  title  and 
possession  would  amount  to  nothing,  and  therefore  the  evidence 
of  it  was  irrelevant.  The  offer  was  not  to  show  an  uninter- 
rupted user  from  Howell  to  the  defendant  of  the  mill  dam, 
mills,  and  the  right  to  flow  the  plaintiff's  lands. 

Evidence  of  that  character  had  been  given,  and  was  pertinent. 
My  conclusion  is  that  there  is  no  error  in  the  judgment  of  the 
court  below,  and  that  it  should  be  affirmed. 

Judgment  affirmed. 


528 
53         "434  GARDNER  vs.  HEART. 

59  "137 

71  "383 

'3  In  an  action  on  the  case  for  an  injury  to  real  property,  the  plaintiff  must  show  either 
9  Ahr>     ^4      title  or  actual  possession  in  himself  at  the  time  the  injury  was  committed. 

-  And  if  no  one  was  in  the  actual  possession,  it  will  not  be  sufficient  proof  to  author- 
ize a  recovery,  to  show  that  the  premises  were  conveyed  to  the  plaintiff  at  some 
period  prior  to  the  injury  by  a  person  not  shown  to  have  been  in  possession  or  to 
have  title. 

THIS  was  an  action  on  the  case  brought  in  the  supreme 
court  by  Gardner  against  Heart  for  an  injury  to  three  lots  of 
land  which  the  plaintiif  claimed  to  own  in  the  city  of  Troy. 
The  defendant  was  the  owner  of  a  hill  called  Mount  Ida  in  the 
vicinity  of  the  lots,  and  the  injury  complained  of  was  occasion- 
ed, as  alleged,  by  the  defendant  carelessly  and  negligently  un- 
dermining the  hill,  so  as  to  cause  a  slide  precipitating  the  earth 
upon  the  plaintiff's  lots.  The  cause  was  first  tried  before 
WILLARD,  circuit  judge,  in  1813.  when  the  plaintiff  was  non- 


SYRACUSE,  NOVEMBER,  1848.  529 


Gardner  v.  Heart. 


suited.  The  supreme  court  on  bill  of  exceptions  set  aside  the 
nonsuit  and  ordered  a  new  trial.  See  1  Denio,  466,  where  the 
case,  as  it  then  appeared,  is  stated.  Another  trial  was  had  be- 
fore PARKER,  circuit  judge,  in  April,  1847,  when  a  verdict  was 
had  for  the  plaintiff.  The  defendant  moved  the  supreme  court 
for  a  new  trial  on  bill  of  exceptions,  which  motion  was  denied. 
See  2  Barb.  Sup.  Court  Rep.  165,  for  a  statement  of  such  ques- 
tions as  arose  on  the  last  trial,  and  the  opinion  of  the  supreme 
court.  Among  those  questions  was  the  following :  The  plaintiff 
gave  in  evidence  a  deed  from  Charles  M.  Baker  to  himself  for 
the  lots  which  had  been  injured,  dated  in  1829,  but  he  neither 
proved  that  the  grantor  had  any  title,  nor  that  either  Baker  or 
himself  had  been  in  possession.  The  defendant  moved  for  a 
nonsuit,  and  urged  as  one  of  the  grounds,  that  the  plaintiff  had 
not  shown  title  to  the  lots  claimed  to  have  been  injured.  The 
motion  was  denied.  The  defendant  appealed  to  this  court  un- 
der the  judiciary  act  of  December,  1847. 

J.  Pier  son,  for  the  defendant. 
D.  L.  Seymour,  for  the  plaintiff. 

WRIGHT,  J.  After  the  plaintiff  had  rested,  the  defendant's 
counsel  moved  for  a  nonsuit  on  the  ground  that  the  former  had 
shown  no  legal  title  to  the  lots  in  question.  At  this  time  the 
plaintiff  had  only  introduced  and  read  in  evidence  a  deed  from 
Charles  M.  Baker,  dated  July  24,  1829,  purporting  to  convey  to 
him  the  lots  in  fee.  No  evidence  had  been  given,  nor  was  it 
subsequently  supplied,  of  title  in  his  grantor  ;  yet  the  judge  re- 
fused to  nonsuit  the  plaintiff,  and  affirmatively  charged  the  jury 
that  "  enough  had  been  made  out  to  show  that  the  plaintiff  was 
the  owner  of  the  lots."  They  were  unoccupied  city  lots.  The 
plaintiff  was  bound  to  show  either  a  regular  paper  title  or  ac- 
tual possession.  The  barely  giving  in  evidence  of  a  deed  to 
him  of  the  premises,  fell  short  of  proving  a  title  ;  yet  the  judge 
must  have  acted  upon  the  assumption  that  it  did  prove  such 
title,  both  in  denying  the  nonsuit  and  in  charging  the  jury. 

VOL.  I.  67 


530  CASES  IN  THE  COURT  OF  APPEALS. 


Houghtaling  v.  Kilderhouse. 


After  the  nonsuit  had  been  denied,  considerable  evidence  was 
incidentally  given  tending  to  show  an  actual  possession  of  the 
lots  by  the  plaintiff,  insomuch  that  had  the  question  of  posses- 
sion, upon  such  evidence,  been  submitted  co  the  jury,  and  they 
had  found  for  the  plaintiff,  we  would  hardly  have  disturbed 
their  verdict  on  that  ground.  Buc  no  questina  of  actual  pos- 
session was  made  or  submitted  ;  ai\d  the  judge  seems  to  have 
continued  to  the  end  the  error  into  which  he  had  fallen  on  the 
motion  for  the  nonsuit. 

A  new  trial  must  be  granted  m  wbich  this  error  may  be  cor 
reeled,  costs  to  abide  the  event. 

New  trial  granted. 


HOUGHTALING  vs.  KILDERHOUSE. 
530 

4          496 

h!42  601  In  an  action  for  slander,  it  is  not  competent  for  the  plaintift  to  introduce  evidence 
of  his  good  character  in  reply  to  evidence  introduced  by  the  defendant  tending  to 
prove  the  truth  of  the  charge. 

ON  error  from  the  supreme  court,  where  Houghialing  sued 
Kilderhouse  in  slander  for  charging  the  plaintiff  with  having 
killed  the  defendant's  horses  by  administering  poison  to  them. 
The  defendant  pleaded  not  guilty  and  gave  notice  of  justifica- 
tion. On  the  trial,  after  the  plaintiff  had  proved  the  speaking 
of  the  words,  the  defendant  gave  circumstantial  evidence  tend- 
ing to  show  that  the  charge  was  true.  The  plaintiff  also  intro- 
duced evidence  upon  that  issue  in  reply,  and  in  connection 
with  such  evidence  offered  to  prove  that  his  general  character 
was  good.  This  was  objected  to  by  the  defendant  and  exclu- 
ded. The  plaintiff  exccpted.  The  jury  having  found  a  ver- 
dict for  the  defendant,  the  plaintiff  moved  in  the  supreme  court 
for  a  new  trial,  which  was  denied  by  that  court,  and  judgment 
rendered  for  the  defendant.  (See  2  Barb.  Rep.  149.) 


SYRACUSE,  NOVEMBER,  1848. 


531 


Lyme  v.  Ward. 


H.  G.  Wheaton,  for  the  plaintiff  in  error,  insisted  that  the 
issue  on  the  trial  involved  simply  the  question  of  guilt  or  inno- 
cence of  a  crime,  amounting  to  felony  and  involving  gross  moral 
turpitude.  In  such  cases  the  general  good  character  of  the  party 
accused  is  always  a  circumstance  to  be  submitted  to  the  jury  to 
repel  the  presumption  of  guilt ;  particularly  where  the  evidence 
to  sustain  the  charge  is,  as  in  this  case,  purely  circumstantial. 
(Ruan  v.  Perry,  3  Caines,  120 ;  Townsend  v.  Graves,  3  Paige, 
453 ;  Harding  v.  Brooks,  5  Pick.  244  ;  Greenl  Ev.  §  426 ; 
2  Starkie's  Ev.  216,  217,  n.  4 ;  Powell  v.  Harper,  5  C.  $•  P. 
590 ;  Petrie  v.  Rose,  5  Watts  fy  Serg.  364.) 

R.  W.  Peckham,  for  the  defendant  in  error,  cited  upon  the 
question,  Go/  v.  St.  John,  (16  Wend.  646 ;)  Fowler  v.  The 
jEtna  Fire  Ins.  Co.  (6  Cowen,  673  ;)  Humphrey  v.  Hum- 
phrey, (7  Conn.  R.  116;)  Potter  v.  Webb,  (6  Greenl.  Rep. 
141 ;)  Anderson  v.  Long,  (10  Serg.  §*  Rawle,  55  ;)  Nash  v. 
Gilkeson,  (5  id.  352 ;)  Woodruff  v.  Whittlesey,  (Kirby,  60  ;) 
Attorney  General  v.  Bowman,  (2  Bos.  $*  Pull.  532.) 

THE  COURT,  after  advisement,  were  of  opinion  that  the  point 
had  been  properly  decided  in  the  courts  below,  and  therefore 
the  judgment  was  affirmed. 


LYME  vs.  WARD,  survivor,  &c. 

It  is  irregular  to  serve  an  assignment  of  errors  before  one  has  been  filed ;  and  where 

the  assignment  was  not  filed  until  the  next  day  after  it  was  served,  the  rule  to  join 

in  error  and  all  subsequent  proceedings  set  aside. 
Where  the  judgment  of  the  court  below  is  reversed  by  default  in  not  joining  in  error, 

the  remittitur  should  not  be  sent  to  the  court  below  until  ten  days  have  elapsed. 
Where  the  action  was  commenced  before  the  code  of  procedure  took  effect,  this 

court  may  grant  costs  on  a  special  motion ;  and  the  amount  is  to  be  settled  by 

taxation. 
But  where  the  suit  is  commenced  after  the  code  took  effect,  this  court  cannot  granJ 

costs  to  the  party  who  makes  a  special  motion. 


532  CASES  IN  THE  COURT  OF  APPEALS. 

Lyme  v.  Ward. 

WRIT  of  error  by  Lyme  to  remove  a  judgment  against  him 
in  favor  of  Ward  and  Goadby,  in  the  New- York  C.  P.  The 
writ  of  error  was  returned  and  filed  with  the  clerk  of  this  court 
on  the  30th  of  June  last.  On  the  same  day  the  plaintiff  in  er- 
ror served  an  assignment  of  errors,  with  notice  that  the  defen- 
dant Ward,  who  had  survived  Goadby,  was  required  to  join  in 
error  within  eight  days,  or  be  precluded  :  but  an  assignment  of 
errors  was  not  filed  until  the  next  day,  the  first  of  July.  On 
the  llth  of  July,  the  plaintiff  in  error  entered  an  order  preclu- 
ding the  defendant  in  error  from  joining  in  error.  On  the  13th 
of  July,  the  plaintiff  in  error  entered  an  order  reversing  the 
judgment  of  the  court  below  with  costs ;  and  on  the  sarre  day 
a  remittitur  was  issued. 

N.  Hill,  Jr.  for  the  defendant  in  error,  moved  to  set  aside  the 
order  precluding  the  defendant  from  joining  in  error,  and  all 
subsequent  proceedings,  for  irregularity. 

S.  Stevens,  for  the  plaintiff  in  error. 

BRONSON,  J.  The  plaintiff  in  error  was  irregular  in  serving 
an  assignment  of  errors  before  one  had  been  filed :  (Rule  4.) 
and  the  orders  precluding  the  defendant  from  joining  in  error, 
and  reversing  the  judgment,  were  therefore  unauthorized.  We 
are  also  of  opinion,  that  the  remittitur  should  not  have  been 
sent  to  the  court  below  until  the  expiration  often  days  from  the 
reversal  of  the  judgment.  (Rule  20.) 

As  the  defendant  in  error  has  been  obliged  to  come  here  at 
considerable  expense  to  get  rid  of  an  irregular  proceeding,  he 
ought  to  have  costs  on  the  motion,  if  we  have  any  authority  to 
give  them.  The  270th  section  of  the  code  of  procedure  forbids 
the  allowance  of  costs  to  the  party  who  makes  a  motion.  But 
originally,  that  section  did  not  apply  to  this  suit,  which  was 
(commenced  before  the  first  of  July.  (Code,  §  8,  391.)  And  al- 
though it  has  since  been  applied  to  proceedings  in  such  suits 
subsequent  to  the  first  of  July  in  certain  specified  courts,  this 
court  is  not  among  the  number.  (Supp.  Code,  §  2.)  We, 


SYRACUSE,  NOVEMBER,  1848.  533 

Van  Dewater  v.  Kelsey. 

therefore,  have  power  to  allow  costs.  The  amount  must  be 
settled  by  taxation.  The  statute  authorizing  the  supreme  court 
to  make  rules  regulating  the  amount  of  costs  on  special  motions 
does  not  apply  to  this  court.  (Stat.  1840,  pp.  333,  336,  §§  15, 39 ; 
Stat.  1847,  p.  321,  §  8.)  If  the  suit  had  been  commenced  since 
the  first  of  July,  the  defendant  in  error  would  have  been  obliged 
to  bear  the  expense  of  getting  rid  of  the  irregular  r  -jeedings 
of  his  adversary. 

Motion  granted,  with  costs  to  be  taxed. 


533 

2  565 

VAN  DEWATER.  appellant,  vs.  KELSEY,  respondent.  3  334 

e47  472 

It  rests  in  the  discretion  of  the  court  of  original  jurisdiction  to  grant,  continue,  or     59  1<  6 

rtn  48^> 

dissolve  a  temporary  injunction ;  and  therefore  a  determination  upon  such  a        ' 

92          o^y 
matter  is  not  the  subject  of  appeal  to  this  court.  qo  g4(] 

ON  a  bill  filed  by  Van  Dewater,  a  temporary  injunction  was  - 
issued,  restraining  the  defendant  from  selling  the  property  in 
controversy  pending  the  litigation.  In  December  last,  after  the 
defendant  had  answered  the  bill,  the  supreme  court  made  an 
order  dissolving  the  injunction  ;  from  which  order  the  complain- 
ant appealed  to  this  court. 

iS.  Matheivs,  for  the  respondent,  moved  to  dismiss  the  appeal, 
on  the  ground  that  an  appeal  would  not  lie  in  such  a  case.  He 
cited  16  Wend.  369;  I  Comst.  43;  4  John.  510;  4  Wend. 
173 ;  1  Paige,  97  ;  3  John.  566 ;  2  Story's  Eq.  §§  863,  959.(a.); 
3  Daniel's  Ch.  Pr.  1833,  ch.  35,  §  3. 

N.  Hill,  Jr.  for  the  appellant,  cited  16  Wend.  373 ;  26  id.  152 

BRONSON,  J.  The  granting,  continuing  and  dissolving  ol 
temporary  injunctions  rests  in  the  discretion  of  the  court  of  ori- 
ginal jurisdiction  ;  and  we  think  an  appeal  will  not  lie  from 
the  order  dissolving  this  injunction. 

Motion  granted. 


634 


CASES  IN  THE  COURT  OF  APPEALS. 


Selden  v.  Vermilya. 


534 

1  610 

5  557 


SELDEN,  appellant,  vs.  VERMILYA  and  others,  respondents. 

Under  the  provisions  of  the  code  of  procedure,  there  is  no  right  of  appeal  to  this 
court  from  an  interlocutory  determination  of  the  supreme  court,  e.  g.  an  order  dis 
solving  a  temporary  injunction. 

ON  a  bill  filed,  a  temporary  injunction  was  granted  restrain- 
ing the  sale  of  the  property  in  controversy  pending  the  litiga- 
tion. Pending  the  suit,  in  September,  1847,  the  supreme  court 
in  special  term  made  an  order  dissolving  the  injunction ;  which 
order  was  confirmed  by  the  supreme  court  on  a  re-hearing  in 
general  term,  in  September  last.  From  the  order  made  at  the 
general  term  the  complainant  appealed  to  this  court. 

G.  F.  Comstock,  for  the  respondent,  moved  to  dismiss  the 
appeal. 

P.  Y.  Cutler,  for  the  appellant. 

BRONSON,  J.  Although  this  suit  was  commenced  prior  to 
the  first  of  July,  yet  as  the  order  of  the  general  term  dissolving 
the  injunction  was  made  since  that  day,  the  right  to  appeal 
depends  on  the  code  of  procedure.  (Mayor  of  New-  York  v. 
Schermerhorn,  ante,  p.  423.)  And  it  is  quite  clear  that  the 
code  does  not  give  an  appeal  in  such  a  case.  (§§  282, 11.) 

Motion  granted. 


SYRACUSE,  NOVEMBER,  1848.  535 

Marvin  v.  Seymour. 


MARVIN  and  others  vs.  SEYMOUR  and  others. 

An  appeal  will  not  lie  to  this  court  from  an  order  of  the  supreme  court  in  general 
term,  denying  an  application  to  rehear  an  order  made  at  a  special  term,  where  the 
order  of  the  special  term  would  not  be  the  subject  of  appeal  to  this  court,  if  it  had 
been  affirmed  by  the  general  term. 

A  motion  to  compel  a  party  to  appear  before  a  master  and  submit  to  an  examination 
is  addressed  to  the  discretion  of  the  court  of  original  jurisdiction,  whose  decision, 
therefore,  cannot  be  reviewed  in  this  court. 

THE  defendants  made  a  motion  before  the  supreme  court  in 
special  term,  for  an  order  to  compel  one  of  the  complainants  to 
appear  and  submit  to  an  examination  before  a  master  to  whom 
the  cause  had  been  referred.  The  motion  was  denied.  The 
defendants  then  applied  to  the  supreme  court  in  general  term 
for  a  rehearing,  which  was  denied  in  May  last.  From  the 
order  denying  the  rehearing  the  defendants  appealed  to  this 
court. 

N.  Hill,  Jr.  for  the  respondents,  moved  to  dismiss  the  appeal 
H.  Denio,  for  the  appellants. 

BRONSON,  J.  We  held  in  Grade  v.  Freeland,  (ante,  p. 
228,)  that  a  party  had  a  right  to  a  rehearing  at  the  general 
term,  after  a  matter  had  been  decided  against  him  at  the  special 
term ;  and  we  have  acted  upon  that  decision  by  reversing  orders 
denying  a  rehearing.  But  it  has  been  in  cases  where  the  order 
made  at  the  special  term,  if  it  had  been  confirmed  by  the  gen- 
eral term,  might  have  been  reviewed  by  this  court  on  appeal. 
In  this  case  we  think  the  order  made  at  the  special  term  would 
not  have  been  appealable,  if  it  had  been  confirmed  by  the  su- 
preme court  in  general  term ;  and  in  such  a  case,  although  a 
rehearing  may  be  improperly  denied  by  the  supreme  court,  we 
are  of  opinion  that  there  can  be  no  appeal  from  the  decision  to 
this  court. 

Motion  granted. 


536 


CASES  IN  THE  COURT  OF  APPEALS. 


Grover  v.  Coon. 


GROVER,  appellant,  vs.  COON,  respondent. 

Where  a  writ  of  error  was  pending  in  the  supreme  court  when  the  code  of  proce- 
dure took  effect,  and  that  court  afterwards  rendered  judgment  of  affirmance,  there 
is  no  right  of  appeal  to  this  court,  the  determination  of  the  supreme  court  being 
final  under  the  provisions  of  the  code. 

A  statute,  which  takes  away  the  right  to  a  future  appeal  in  an  action  pending  and 
undetermined  when  the  statute  takes  effect,  is  not  unconstitutional. 

C.  P.  Kirkland,  for  the  respondent,  moved  to  dismiss  the 
appeal.  Before  and  on  the  first  day  of  July  last  a  writ  of  error 
was  pending  in  the  supreme  court,  on  a  judgment  of  the  com- 
mon pleas  affirming  a  judgment  rendered  by  a  justice  of  the 
peace,  in  an  action  commenced  before  him.  On  the  20th  of 
July  last,  the  supreme  court,  after  argument,  affirmed  the  judg- 
ment of  the  justice  ;  and  Grover  appealed  to  this  court  from  that 
determination. 

John  Clarke,  for  the  appellant. 

BRONSON,  J.  The  282d  section  of  the  code  of  procedure  ap- 
plies to  proceedings  subsequent  to  the  first  of  July,  in  suits  which 
were  pending  on  that  day.  (Sitpp.  Code,  §  2.)  The  writ  of 
error  in  this  case  was  pending  in  the  supreme  court  on  the  first 
of  July,  and  was,  we  think,  a  suit  within  the  meaning  of  the 
statute.  The  judgment  of  affirmance  was  subsequent  to  the 
first  of  July ;  and  as  the  action  was  "  originally  commenced  in 
a  court  of  a  justice  of  the  peace,"  there  was  no  right  of  appeal 
to  this  court.  (§§  2S2.  11.)  The  judgment  of  the  supreme 
court  was  final. 

We  see  no  force  in   the  objection  urged  by  the  appellant's 
counsel,  that  the  statute  is  unconstitutional.     The  legislature 
did  not  take  away  a  right  of  appeal  which  had  already  attach 
ed  :  they  only  said  that  for  the  future,  no  appeal  to  this  court 
should  be  allowed  in  such  cases. 

Motion  granted. 


CASES 

ARGUED    AND    DETERMINED 

IN  THE 

COUET  OF  APPEALS 

OF  THE 

STATE    OF   NEW-YORK, 

IN  DECEMBER  TERM,  1848. 


537 
TEALL  vs.  FELTON.  aia  HOW  us  284 

s49  AD     3o2 
61  '432 

ay  be  maintained  in  the  courts  of  this  state  against  a  postmaster  for  improp-      81  2391 

.  y  detaining  a  newspaper,  although  such  detention  is  undercolor  of  the  laws  of 
the  United  States  and  the  regulations  of  the  post  office  department. 
The  question,  when  the  jurisdiction  of  the  federal  courts  is  exclusive  and  when  con- 
current with  that  of  the  state  courts,  considered. 

A  postmaster,  who  assumes  to  charge  letter  postage  on  a  newspaper,  in  consequence 
of  an  initial  being  on  the  wrapper,  does  not  act  judicially  in  such  a  sense  as  to 
protect  him  from  an  action  for  improperly  detaining  such  newspaper,  although  no 
fraud  or  malice  be  alleged  or  proved. 

ON  error  from  the  supreme  court.  Mary  C.  Felton,  by  her 
next  friend  Charles  T.  Hicks,  sued  William  W.  Teall  in  a 
justice's  court,  and  declared  in  trover  for  converting  one  news- 
paper called  the  Michigan  Expositor,  of  the  value  of  six  cents, 
and  one  newspaper  wrapper  of  the  value  of  six  cents.  The  de- 
fendant pleaded  the  general  issue,  and  the  cause  was  tried  by 
a  jury.  On  the  trial  it  appeared  that  the  defendant  was  post- 
master at  the  city  of  Syracuse  ;  that  the  newspaper  mentioned 

VOL.  I.  68 


538  CASES  IN  THE  COURT  OF  APPEALS. 


Teall  r.  Fclton. 


in  the  declaration  came  to  that  post  office  and  was  puf  into  the 
box  of  Mr.  Hicks,  who  demanded  it  of  the  postmaster  in  behalf 
of  the  plaintiff,  and  tendered  the  newspaper  postage  thereon, 
being  one  and  a  half  cents.  There  was  an  initial  upon  the 
wrapper,  and  for  that  reason  the  defendant  refused  to  deliver  it 
until  letter  postage,  fifteen  cents,  should  be  paid.  The  letter 
postage  was  marked  at  the  Syracuse  post  office.  One  of  the 
clerks  in  the  post  office  testified  that  it  was  the  general  custom 
to  charge  letter  postage  on  newspapers  having  on  them  a  single 
initial.  The  defendant  in  the  course  of  the  trial  objected  to 
the  jurisdiction  of  the  court,  which  objection  was  overruled. 
After  the  plaintiff  had  rested,  the  defendant  introduced  in  evi- 
dence a  circular  from  the  post  office  department  as  follows  : 

"  To  Postmasters.  I  am  directed  by  the  postmaster  general 
to  call  your  special  attention  to  the  multiplied  and  increasing 
attempts  to  violate  the  law  and  defraud  the  revenue  by  writing 
on  the  wrappers,  margin  or  other  portion  of  newspapers,  pam- 
phlets and  magazines  sent  by  mail.  The  cheap  postage  system 
has  removed  every  reasonable  excuse  for  violating  or  evading 
ihe  law,  and  too  much  vigilance  cannot  be  exercised  by  post- 
masters to  detect  and  punish  the  offenders;  and  public  senti- 
ment, wrhen  well  informed,  will  not  fail  to  sustain  you  in  the 
faithful  discharge  of  this  duty,  which  is  as  imperative  upon  you 
as  any  other.  That  frauds  of  this  kind  may  be  detected  and 
traced  to  their  origin,  you  are  particularly  instructed  to  stamp 
or  mark  in  writing  any  transient  (by  which  is  meant  all  not 
regularly  sent  to  subscribers)  newspapers,  pamphlets  or  maga- 
zines, with  the  name  of  the  office  and  amount  of  postage.  The 
wrappers  of  all  such  newspapers,  pamphlets  or  magazines,  when 
they  have  reached  their  destination,  should  be  carefully  removed, 
and  if  upon  inspection,  found  to  contain  any  manuscript  or 
memorandum  of  any  kind,  either  written  or  stamped,  or  by 
marks  or  signs  made  in  any  way,  either  upon  any  newspaper, 
printed  circular,  price  current,  pamphlet  or  magazine,  or  the 
wrapper  in  which  it  is  enclosed,  by  which  information  shall  be 
asked  for  or  communicated,  except  the  name  and  address  of  the 
person  to  whom  it  is  directed,  such  newspaper,  printed  circular, 


ALBANY,  DECEMBER,  1848.  539 


Teall    v.  Felton. 


price  current,  pamphlet  or  magazine,  wi*h  the  wrapper  in  which 
it  is  enclosed,  shall  be  charged  with  letter  postage  by  weight. 
If  the  person  to  whom  the  newspaper,  printed  circular,  price 
current,  pamphlet  or  magazine  is  directed,  refuses  to  pay  such 
letter  postage  thereon,  the  postmaster  will  immediately  transmit 
the  same  to  the  office  from  whence  it  was  forwarded,  and  request 
the  postmaster  thereof  to  prosecute  the  same  for  the  penalty  of 
five  dollars  as  prescribed  by  the  30th  section  of  the  act  of  1825. 
Suits  may  be  brought  either  in  district  courts  or  before  state 
magistrates  having  civil  jurisdiction  in  actions  of  debt  for  this 
amount  under  the  respective  state  laws.  The  name  of  the 
sender  written  or  stamped  either  upon  the  newspaper,  printed 
circular,  price  current,  pamphlet  or  magazine,  or  the  wrapper 
in  which  it  is  enclosed,  communicates  such  information  as  sub- 
jects it  to  letter  postage,  and  the  consequential  penalties,  if  such 
postage  is  not  paid  at  the  place  of  its  destination. 

The  diminution  of  the  revenue  of  the  department  under  the 
iheap  postage  system,  and  the  great  and  increasing  demand  for 
additional  mail  facilities  throughout  the  country,  wrhose  territo- 
ry now  extends  to  the  Pacific,  render  it  absolutely  necessary 
not  only  that  every  cent  of  lawful  revenue  be  collected  and  ac- 
counted for,  but  that  the  utmost  vigilance  should  be  exercised 
for  the  prevention  of  fraud,  and  the  sure  and  speedy  infliction 
of  the  proper  penalty  upon  the  offender. 

This  can  only  be  accomplished  by  the  strictest  attention  of 
postmasters,  who  are  the  sworn  agents  of  the  department,  and 
bound  to  see  the  laws  faithfully  administered. 

Post  Office  Department,  Dec.  4,  1846. 

W.  J.  BROWN,  2d  Assistant  Postmaster  General." 

The  jury  gave  their  verdict  for  the  plaintiff  for  six  cents  dam- 
ages, on  which  the  justice  rendered  judgment.  The  common 
pleas  of  Onondaga  county,  on  certiorari  brought  by  the  defen- 
dant, affirmed  the  judgment.  The  defendant  then  brought 
error  into  the  supreme  court,  and  that  court  sitting  in  the  fifth 
district  affirmed  the  decision  of  the  common  pleas.  The  opin- 
ion of  the  supreme  court  was  delivered  by  GRIDLEY,  J.  as 
follows  • 


540     CASES  IN  THE  COURT  OF  APPEALS. 


Teall  v.  Fclton. 


GRIDLEY,  J.  We  have  no  doubt  that  this  action  was  prop- 
erly brought  in  a  state  court.  If  a  letter  enclosing  $1000  in 
oank  notes,  had  been  sent  by  mail  to  the  post  office  in  Syracuse, 
directed  to  the  plaintiff,  and  had  been  withheld  by  the  postmas- 
ter, unlawfully,  after  a  tender  of  the  postage  chargeable  on  the 
package,  it  is  difficult  to  see  why  an  action  would  not  lie  against 
the  postmaster  for  a  conversion  of  the  money,  in  a  stale  court. 
The  injury  is  one  for  which  the  common  law  gives  redress,  and 
the  party  injured  may  seek  his  redress  by  the  usual  common 
law  remedy,  in  any  appropriate  common  law  tribunal.  The 
case  is  not  one  where  the  remedy  is  given  by  an  act  of  congress, 
and  is  to  be  sought  in  the  courts  of  the  United  States.  So  too, 
we  are  of  the  opinion  that  the  conversion  of  a  newspaper  belong- 
ing to  a  citizen,  authorizes  an  action  of  trover  in  the  appropri- 
ate state  tribunal,  notwithstanding  the  party  guilty  of  the 
conversion  should  be  a  postmaster.  To  justify  such  an  action, 
however,  the  conversion  should  be  clearly  proved.  The  with- 
holding of  the  paper  should  be  shown  to  be  without  color  of 
right,  and  the  plaintiff  should  establish  his  title  to  it  by  unques- 
tionable proof.  This  view  of  the  case  brings  us  to  the  consid- 
eration of  the  question  whether  there  is  any  error  apparent  in 
the  record  for  which  we  are  authorized  to  reverse  the  judgment. 
This  will  depend  upon  the  facts  proved  on  the  trial  of  the  cause, 
or  rather  upon  what  we  are  bound  to  adjudge  to  be  the  facts  of 
the  case  after  the  verdict  of  the  jury. 

By  the  act  of  1815,  (Acts  of2d  Session  of  28th  Congress,  p. 
24,  §  1.)  the  defendant  was  bound  to  charge  with  letter  postage, 
not  only  letters  in  manuscript,  but  also  "  a  paper  of  any  kind 
by  or  upon  which  information  ahull  be  asked  for  or  communi- 
cated in  writing,  or  by  marks  and  signs"  &c.  Now  it  is 
quite  clear  that  an  initial  may  be  so  placed  upon  a  paper  as  to 
convey  information,  and  precisely  such  information  as  was  in- 
tended to  be  prohibited  by  the  act.  For  instance,  a  friend 
whose  initial  is  known  to  his  correspondent  who  may  be  trav 
elling  to  a  certain  place,  in  Michigan,  may  thus  communicate  \ 
a  distant  person,  the  fact  of  his  arrival.  So  also  a  distant  coy- 
respondent  may,  by  a  paper  which  in  itself  contains  nothing  of 


ALBANY,  DECEMBER,  1848.  54] 


Teall  v.  Felton. 


mportance,  on  which  is  inscribed  his  initial,  communicate  the 
fact  of  his  friendly  remembrance  and  recognition,  and  of  his 
own  good  health.  There  are  cases,  therefore,  in  which  a  post- 
master may  only  be  doing  his  duty  under  the  act,  in  charging 
such  a  paper  with  letter  postage.  And  chap.  58,  §  426,  of  the 
regulations  for  the  government  of  the  post  office  department, 
shows  that  it  is  immaterial  whether  the  writing,  or  sign,  or 
mark  is  on  the  paper  or  the  wrapper.  We  have  no  doubt  that 
the  above  is  a  sound  though  a  severe  interpretation  of  the  act, 
when  we  consider  the  object  for  which  it  was  passed,  and  the 
change  in  the  phraseology  from  that  employed  in  the  act  of 
1825.  But  it  is  equally  clear  that  an  alphabetical  character 
which  would  be  an  initial  of  some  word  or  name,  may  often  be 
found  inscribed  on  the  wrapper  of  a  newspaper  made  carelessly 
and  with  no  definite  intent,  or  which  may  have  been  upon  the 
paper  used  as  a  wrapper  before  it  was  employed  for  that  pur- 
pose. In  such  a  case  the  initial  would  be  no  evidence  at  all, 
that  it  was  a  mark  or  sign  by  which  information  was  asked  or 
communicated.  Now  we  have  no  evidence  in  this  return  of 
the  justice  that  this  single  letter  was  a  capital  letter;  whether  it 
appeared  to  be  written  by  the  same  hand,  or  with  the  same  ink 
and  pen  with  the  address  on  the  wrapper,  nor  as  to  what 
position  it  occupied  on  the  wrapper.  Nor  have  we  any  evi- 
dence, whatever,  to  show  by  circumstances  or  otherwise,  whether 
it  was  probably  written  by  the  person  who  sent  the  paper,  to 
communicate  information,  or  not.  For  aught  we  know,  it  was 
written  with  a  different  ink  and  pen  and  hand,  and  was  placed 
in  such  a  position  on  (he  -wrapper,  as  to  indicate  that  it  was 
there  by  accident  and  not  by  intent.  It  is  true  that  the  evi- 
dence does  not  show  that  it  was  so,  nor  does  it  show  to  the 
contrary  ;  and  that  is  precisely  the  case  where  the  law  declares 
that  every  intendment  and  presumption  is  to  be  made  in  favor 
of  and  to  uphold  the  verdict  of  the  jurv.  If  the  facts  are  such 
as  to  indicate  an  intentional  making  of  the  letter  by  the  same 
hand  which  wrote  the  address,  that  should  have  appeared  on  the 
return  of  the  justice.  (See  IS  Wend.  141  ;  3  Mm.  435,  439  ; 
2  id.  378.)  The  jury  saw  the  witness  and  may  have  had  op- 


CASES  IN  THE  COURT  OF  APPEALS. 


Teall  v.  Felton. 

portunities  to  arrive  at  the  truth,  which  we  have  not.  Hence 
the  difficulty  of  setting  aside  a  verdict  when  there  is  room  for 
controversy  about  the  facts. 

We  must  hold,  therefore,  inasmuch  as  it  may  have  been 
clearly  an  accidental  mark,  that  the  jury  have  found  that  it 
was  so.  This  we  feel  bound  to  adjudge,  while  we  can  readily 
imagine  that  by  means  of  a  careless  mode  of  trying  the  cause, 
or  of  an  imperfect  return,  injustice  may  have  been  done  to  the 
defendant  below. 

S.  D.  Dillaye,  for  the  plaintiff  in  error.  I.  The  act,  on  ac- 
count of  which  this  suit  was  brought,  was  done  by  the  plaintiff 
in  error  as  postmaster,  and  in  the  regular  exercise  of  his  duties 
under  the  laws  of  the  United  States  and  the  regulations  of  the 
post  office  department.  For  any,  even  an  erroneous,  exercise 
of  his  duties  as  such  postmaster  he  was  not  amenable  to  the 
tribunals  of  the  state  of  New- York.  The  state  courts  had  no 
jurisdiction  over  the  subject  matter  of  the  suit.  (Const,  of  U.  S. 
art.  1,  §  8 ;  Post  Office  Laws  of  1825  and  1827 ;  Common- 
wealth v.  Feely,  1  Va.  Cas.  321  ;  Sergeants  Const.  Law,  279  ; 
United  States  v.  LatJirop,  17  John.  8,  9,  10 ;  Story  on  the 
Const.  §§  1124, 1632  ;  McCidlough  v.  The  State  of  Maryland, 
4  Wheat.  416  ;  United  States  \.  Cornell,  2  Mason's  Rep.  60  ; 
Osborn  v.  Bank  of  U.  S.  9  Wheat.  738  ;  Slocum  v.  Mayberry, 
2  id.  I;  Federalist,  No.  80.) 

II.  In  the  absence  of  fraud  or  malice,  which  are  not  pretend- 
ed or  alleged  in  this  case,  officers  required  by  the  law  to  exer- 
cise their  judgment  are  not  answerable  for  mistakes  of  law  or 
errors  of  judgment.     (Drew  v.  Colton,  1  East,  563  and  note ; 
Seaman  v.  Patten,  2   Caines,  312;  Jenkins  \.   Waldron,  11 
John.  114;    Va.-idcrhei/den  v.  Young,  id.  160;   Cunningham 
v.  Bucklin,  8  Cowen,  185  ;    Weaver  v.  Deavendorf,  3  Dcnio, 
117.)     The  act  complained  of  was  in  its  nature  judicial,  and 
the  cases  cited  show  that  the  plaintiff  in  error  was  not  liable 
therefor. 

III.  The  evidence  on  the  trial  clearly  showed  that  there  was 
an  initial  on  the  wrapper  of  the  newspaper  when  it  came  to  the 


ALBANY,  DECEMBER,  1848.  543 

Teall  v.  Felton. 

Syracuse  post  office ;  and  it  should  have  been  decided  as  mat- 
er of  law  that  the  plaintiff  in  error,  in  imposing  letter  postage, 
lid  no  more  than  follow  out  the  instructions  from  the  post  office 

department,  and  therefore  that  he  was  not  liable. 

B.  D.  Noxon,  for  the  defendant  in  error,  to  sustain  the  juris- 
diction of  the  state  courts,  cited  Bruen  v.  Ogden,  (6  Halst. 
370,  377,  379,  381 ;)  Wilson  v.  McKenzie,  (7  Hill  95  ;)  Story 
on  Agency,  §§  319,  319  «,  3196,  320,  321,  322;  Cowp.  754; 
1  Kent's  Com.  386.  On  the  merits  he  insisted  that  the  ques- 
tion was  one  of  fact  purely,  as  to  which  the  verdict  was  conclu- 
sive. (18  Wend.Ul-,  1  Hill,  61;  3/0^.435,439;  2«U378.) 

WRIGHT,  J.  The  first  point  taken  by  the  plaintiff  in  error 
is,  that  if  any  action  could  be  maintained  against  him,  the  de- 
fendant in  error  had  not  the  choice  of  a  forum,  as  the  jurisdic- 
tion of  the  courts  of  thellnited  States,  in  a  case  of  this  character, 
is  exclusive.  If  this  proposition  be  true,  it  is  quite  unnecessary 
for  the  plaintiff  in  error  to  come  here  to  ask  us  to  reverse  the 
judgment,  for  it  is  utterly  void. 

This  is  undoubtedly  a  question  of  grave  importance  ;  for  if 
the  plaintiff  in  error  be  right,  the  state  courts  have  been  wrong 
ever  since  the  adoption  of  the  constitution  of  the  United  States  ; 
as  the  cases  are  almost  without  number,  in  which  such  courts, 
in  the  exercise  of  their  ordinary,  original  and  rightful  jurisdic- 
tion, have  incidentally  taken  cognizance  of  cases  arising  under 
the  constitution,  the  laws,  and  treaties  of  the  United  States. 
(1  Kenfs  Com.  395.)  In  our  own  courts,  officers  of  the  gov- 
ernment of  the  United  States  have  been  impleaded  in  actions 
of  assumpsit,  debt,  trespass,  &c.  in  which  the  defence  set  up 
was  that  they  were  acting  officially  under  the  laws  of  the  Un- 
ion. (Ripley  v.  Gelston,  9  John.  R.  201 ;  In  the  matter  of 
Stacy,  10  id.  328  ;  Hoyt  v.  Gelston  fy  Schenck,  13  id.  141 ; 
Wilson  v.  M'Kcnzie,  7  Hill,  95  ;)  and  in  at  least  one  case  the 
supreme  court  of  this  state  held  that  they  had  jurisdiction,  and 
sustained  a  suit  on  a  bond  for  duties  given  to  a  collector  of  the 
United  States  customs.  ( United  States  v.  Dodge,  14  John 


544  CASES  IN  THE  COURT  OF  APPEALS. 


Tcall  v.  Felton. 


R.  95.)  I  am  not  disposed  to  assume  for  the  courts  of  this 
state  the  exercise  of  powers,  concurrently  or  otherwise,  clearly 
taken  from  them  by  the  constitution  of  the  United  States  ;  nor 
a  jurisdiction  in  all  cases  that  may  grow  out  of,  and  be  pecu- 
liar to  that  instrument :  but  I  think  that  to  divest  them  of  prim- 
itive jurisdiction,  or  pre-existing  authority,  the  grant  of  power 
to  the  federal  courts  should  be  direct  and  exclusive,  and  the  ex- 
ercise of  it  by  the  state  courts  expressly  prohibited.  This  was 
the  construction  given  to  the  clauses  of  the  constitution  provi- 
ding for  the  organization  of  the  federal  judiciary,  cotcmpora- 
neous  with  its  adoption,  both  by  the  national  legislature  and 
eminent  expounders  of  it.  (Judiciary  Act  of  1789 ;  Feder- 
alist, No.  82.) 

The  first  section  of  the  third  article  of  the  constitution  of  the 
United  States  provides  for  the  organization  of  a  supreme  court, 
and  such  inferior  courts  as  congress  may  from  time  to  time  or- 
dain and  establish.  This  provision  simply  denotes  the  organs 
of  the  national  judiciary.  Were  its  construction  extended  fur- 
ther, "  it  would  (as  has  been  remarked  by  one  of  the  eminent 
framers  of  the  constitution,)  amount  to  an  alienation  of  state 
power  by  implication."  (Federalist,  No.  82.)  The  second  sec- 
tion provides  that  "  the  judicial  power  shall  extend  to  all  cases 
in  law  and  equity,  arising  under  this  constitution,  the  laws  of 
the  United  States,  and  treaties  made,  or  which  shall  be  made 
under  their  authority  ;  to  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls  ;  to  all  cases  of  admiralty  and 
maritime  jurisdiction  ;  to  controversies  to  which  the  United 
States  shall  be  a  party  ;  to  controversies  between  two  or  more 
slates,  between  a  state  and  citizens  of  another  state,  between 
citizens  of  different  states,  between  citizens  of  the  same  state 
claiming  lands  under  grants  of  different  states,  and  between  a 
state,  or  the  citizens  thereof,  and  foreign  states,  citizens  or  sub- 
jects." This  is  a  mere  grantof  jurisdiction  to  the  federal  courts, 
and  limits  the  extent  of  their  powers,  but  without  words  of  ex- 
clusion, or  any  attempt  to  oust  the  state  courts  of  concurrent 
jurisdiction,  in  any  of  the  specified  cases  in  which  jurisdiction 
existed  prior  to  the  adoption  of  the  constitution.  The  apparent 


ALBANY,  DECEMBER,  1848.  545 

Teall  v.  Felton. 

object  was  not  to  curtail  the  powers  of  the  state  courts,  but  to 
define  the  limits  of  those  granted  to  the  federal  judiciary. 

This  doctrine  of  exclusive  and  concurrent  jurisdiction  grow- 
ing out  of  the  provisions  of  the  third  article  of  the  constitution 
of  the  United  States,  was  fully  examined  in  the  court  for  the 
correction  of  errors,  in  the  case  of  Delafield  v.  State  of  Illinois, 
(2  Hill,  159.)  and  that  court,  with  great  unanimity,  arrived  at 
the  conclusion,  that  the  constitution  had  not,  by  its  own  force, 
divested  the  state  courts  of  any  of  their  former  jurisdiction  ;  and 
that  a  mere  grant  of  jurisdiction  to  a  particular  court,  without 
words  of  exclusion  as  to  other  courts  previously  possessing  the 
like  powers,  will  only  have  the  effect  of  constituting  the  former 
a  court  of  concurrent  jurisdiction  with  the  latter.  See,  also, 
Federalist,  No.  82,  in  which  a  similar  doctrine  is  maintained. 

I  will  not  contend  that  congress  may  not  make  the  jurisdic- 
tion of  the  federal  courts  exclusive  in  cases  affecting  ambassa- 
dors, other  public  ministers,  and  consuls  ;  or  in  cases  of  admi- 
ralty and  maritime  jurisdiction  ;  or  in  cases  growing  out  of,  and 
peculiar  to  the  federal  constitution,  and  where  the  remedy  is 
exclusively  given  by  an  act  of  the  national  legislature.  In  the 
latter  cases  congress  may  unquestionably  provide  that  the  rem- 
edy specifically  given  shall  be  pursued  and  enforced  in  the  fed- 
eral courts  solely.  But  in  many  cases  where  the  law  of  the 
Union  prescribes  the  remedy,  the  power  to  pursue  and  enforce 
it  in  the  state  courts,  is  expressly  given  by  congress.  In  cases 
where  this  has  not  been  done,  and  there  is  no  exclusive  grant 
of  jurisdiction  to  the  federal  courts,  if  the  state  tribunals  are  so 
organized  as  to  afford  redress,  it  may  be  obtained  therein.  I 
think  that  it  is  strictly  true  that  in  all  civil  cases  where  the 
common  law  affords  redress,  the  party  injured  may  seek  it  in  a 
state  tribunal,  proceeding  according  to  the  course  of  the  com- 
mon law,  and  having  jurisdiction  of  the  person  of  the  defen- 
dant, though  he  may  be  an  officer  of  the  federal  government, 
and  affect  to  act  under  a  law  of  the  Union.  <:  The  judiciary 
power  of  every  government,"  says  one  of  the  distinguished  au- 
thors of  the  Federalist,  -  looks  beyond  its  own  local  or  munici- 
pal laws,  and  in  civil  cases  lays  hold  of  all  subjects  of  litigation 

VOL.  I.  69 


546  CASES  IN  THE  COURT  OF  APPEALS. 


Teall  v.  Felton. 


between  parties  within  its  jurisdiction,  though  the  causes  of 
dispute  are  relative  to  the  laws  of  the  most  distant  part  of  the 
globe.  Those  of  Japan  not  less  than  of  New- York  may  fur- 
nish the  objects  of  legal  discussion  to  our  courts."  (Federalist, 
No.  82.)  I  am  aware  that  there  are  cases  of  federal  cogni 
zance,  in  which  the  state  courts  have  not  a  concurrent  juris- 
diction. A  sovereign  state  cannot  be  sued  in  the  court  of  another 
state,  neither  could  she  be  in  the  federal  courts,  but  by  agreeing 
expressly  in  the  national  compact  to  submit  herself  to  their  ju- 
risdiction. Crimes  against  the  government  of  the  United  States 
cannot  be  punished  in  the  state  courts,  for  every  criminal  pros- 
ecution must  charge  the  offence  to  have  been  committed  against 
the  sovereign  whose  courts  sit  in  judgment  upon  the  offender, 
and  whose  executive  may  pardon  him.  (1  Kenfs  Com.  402.) 
Nor  will  the  courts  of  this  state  enforce  the  penal  laws  of  the 
United  States,  ( United  States  v.  Lathrop,  17  John.  R.  9,)  or 
of  any  other  state.  (Scoville  v.  Canjicld,  17  John.  R.  338.) 
But  the  want  of  jurisdiction  in  these  cases  depends  upon  princi- 
ples older  than  the  federal  constitution,  and  wholly  indepen- 
dent of  it. 

But  the  counsel  for  the  plaintiff  in  error  contends  that  this  is 
a  case  which  the  state  courts  did  not  hold  cognizance  of  at  the 
adoption  of  the  federal  constitution,  for  the  reason,  that  the  post 
office  department  not  only  never  in  any  manner  or  at  any  time, 
pertained  to  the  state  or  colony,  but  is  entirely  the  creation  of 
the  national  statute :  that  it  owes  its  existence  exclusively  to 
the  constitution  and  national  legislature,  and  hence,  that  the 
federal  judiciary  has  exclusive  jurisdiction  in  all  matters  grow 
ing  out  of,  or  pertaining  to  it.  That  the  post  office  is  a  federal 
institution  no  one  will  deny  ;  but  it  is  difficult  to  perceive  how 
the  premises  of  the  counsel  sustain  the  conclusion  at  which  he 
arrives.  The  same  reason  would  apply  with  equal  force  in 
case  of  a  suit  being  brought  against  a  collector  of  the  customs. 
The  present  action  is  one  coeval  with  the  common  law,  to  en- 
force a  right  to  property,  alleged  to  have  been  wrongfully  con 
verted  by  the  defendant.  This  remedy  for  a  tortious  conversion 
has  always  been  complete  in  the  state  courts.  It  does  not  fol 


ALBANY,  DECEMBER,  1848.  547 

Teall  v.  Felton. 

low  that  because  the  defendant  may  have  been  acting  under  a 
law  of  congress,  in  withholding  the  newspaper,  and  consequently 
may  defend  himself  against  the  alleged  conversion,  that  juris- 
diction of  the  subject  matter  is  exclusively  given  or  acquired  by 
the  federal  courts  under  such  law.  The  plaintiff  is  not  seeking 
redress  under  the  post  office  laws,  or  attempting  to  enforce  a 
penalty  specifically  imposed  by  them  on  the  postmaster  for  a 
fraudulent  act  pertaining  to  his  official  duty.  She  simply  seeks 
to  recover  in  an  appropriate  common  law  tribunal,  competent 
to  afford  a  remedy,  and  in  a  form  of  action  more  ancient  than 
the  federal  constitution  or  laws,  the  value  of  her  property.  If 
the  defendant  can  maintain  that  by  the  post  office  laws,  or  any 
constitutional  act  of  the  national  legislature,  there  was  no  legal 
conversion,  his  defence  will  be  complete.  But  it  is  an  incorrect 
conclusion,  that  because  a  law  of  congress  prescribes  the  duties 
of  an  officer  of  the  federal  government,  and  in  a  proper  case  he 
may  thereunder  defend  his  acts,  for  such  reason  the  state  courts 
are  ousted  of  jurisdiction.  Upon  the  whole,  I  have  no  doubt 
that  the  justice  had  jurisdiction  in  the  present  case  :  and  whilst 
asserting  this  jurisdiction,  I  would  not  be  understood  as  inclined 
to  throw  the  least  obstacle  in  the  way  of  a  successful  operation 
of  the  general  government,  or  to  encourage  the  exercise  of  state 
power  having  that  tendency. 

The  remaining  point  of  the  plaintiff  in  error  is.  that  the  post- 
master was  required  by  law  to  judicially  determine  whether  the 
initial  on  the  wrapper  of  the  newspaper,  asked  for  or  commu- 
nicated information  ;  and  that  being  compelled  to  act,  he  is  not 
answerable  for  a  mistake  in  law,  or  a  mere  error  of  judgment, 
unaccompanied  by  fraud  or  malice.  The  principle  is  well  set- 
tled that  a  public  officer,  who  is  not  a  mere  volunteer,  but  com- 
pelled to  act  in  a  judicial  capacity,  is  not  amenable  either 
civilly  or  criminally,  for  a  mistake  in  law,  or  error  of  judgment, 
when  his  motives  are  untainted  with  fraud  or  malice  :  and  if  it 
be  true  that  the  postmaster  in  this  case  was  compelled  to  exer- 
cise his  judgment  in  determining  the  object  or  purpose  of  the 
initial  upon  the  wrapper,  the  judgment  against  him  should  be 
reversed.  (Drew  v.  Coulton^  I  East's  R.  563 ;  Seaman  v*  Pat 


548  CASES  IN  THE  COURT  OF  APPEALS. 

Teall  ».  Fclton. 

ten,  2  Caines*  R.  312;  Jenkins  v.  Waldron,  11  John.  R.  114; 
Weaver  v.  Devendorf,  3  Denio,  117.)  I  have  been  unable, 
however,  to  arrive  at  the  conclusion  on  this  point,  so  confidently 
put  forth  by  the  counsel  for  the  plaintiff  in  error.  In  the  act 
"  to  reduce  the  rates  of  postage,"  &c.  (Laws  of  the  U.  /States 
for  1845,  chap.  43,  §  1,)  this  provision  occurs  :  "  In  lieu  of  the 
rates  of  postage  now  established  by  law  there  shall  be  charged 
the  following  rates,  viz  :  For  every  single  letter  in  manuscript, 
or  paper  of  any  kind  by  or  upon  which  information  shall  be 
asked  for  or  communicated  in  writing,  or  by  marks  and  signs, 
conveyed  in  the  mail,  for  any  distance  under  three  hundred 
miles,  five  cents  ;  and  for  any  distance  over  three  hundred  miles, 
ten  cents,"  &c.  This  is  the  only  provision  touching  the  ques- 
tion, and  this  it  is  insisted  compels  the  postmaster,  in  all  cases, 
in  which  a  newspaper  shall  be  conveyed  through  the  mail,  hav- 
ing writing  thereon,  or  marks  and  signs,  to  judicially  determine 
whether  such  writing,  or  marks,  or  signs,  ask  for  or  communi- 
cate information.  In  other  words,  that  it  is  submitted  to  him 
as  the  sole  judge  in  every  case  to  decide  the  question  of  fact ; 
and  it  follows  of  course  that  from  his  judgment  there  is  no  ap- 
peal. I  see  nothing  in  the  law  of  congrcs*  that  submits  this 
question  exclusively  to  his  judgment ;  nor  is  the  power  within 
the  general  scope  of  his  duties  as  postmaster.  I  think  that  if 
ne  assumes  to  determine,  he  does  it  at  his  peril.  It  is  true  that 
he  is  bound  to  charge  the  rates  of  postage  prescribed  on  letters 
or  papers,  conveyed  by  the  mail,  of  the  description  embraced 
in  the  act  of  congress.  In  a  great  variety  of  cases  it  would  be 
obvious  that  the  writing,  marks,  or  signs,  were  used  to  ask  for 
or  convey  information,  and  as  a  matter  of  fact  a  jury  would  not 
hesitate  to  come  to  that  conclusion.  In  such  cases  the  post- 
master would  be  but  doing  his  duty  to  charge  letter  postage. 
But  there  may  be  cases  where  the  intent  is  riot  apparent,  or  the 
writing,  mark  or  sign,  may  be  on  the  newspaper  or  its  wrapper, 
without  a  definite  intent,  or  by  accident.  He  is  not  made  the 
exclusive  arbiter  to  decide  that  such  newspapers  should  or  should 
not  be  rated  with  letter  postage.  When  he  does  undertake  to 
Jecide,  it  should  be  in  a  case  in  which  the  fact,  if  disputed, 


ALBANY,  DECEMBER,  1848.  549 


Teall  v.  Felton. 


could  be  satisfactorily  established.  Whether  a  newspaper,  by 
having1  writing  or  marks  thereon,  falls  within  the  description 
authorizing-  it  to  be  rated  with  letter  postage,  is  a  question  of 
fact,  and  if  disputed,  must  be  determined  in  the  same  manner 
and  by  the  same  tribunals,  that  determine  other  questions  of 
fact. 

I  confess  that  I  see  difficulty  in  many  cases  to  successfully 
carry  out  the  provisions  of  the  act  of  congress.  It  might  be 
impossible,  many  times,  for  jurors  to  satisfactorily  determine 
whether  an  initial,  or  mark,  found  on  a  newspaper  passing 
through  the  mail,  was  placed  thereon  with  a  definite  intent. 
But  this  is  no  reason  for  the  postmaster  to  assume  judicial 
power.  The  national  legislature  can  alone  remedy  the  diffi- 
culty. 

In  this  case  the  jury  have  found  that  the  initial  on  the  wrap- 
per of  the  newspaper  was  there  without  any  design  of  asking 
for  or  communicating  information  ;  that  it  was  a  mark  thought- 
lessly or  accidentally  made,  or  that  it  was  on  the  paper  prior  to 
its  being  used  as  a  wrapper,  and  hence  that  the  paper  did  not 
fall  within  the  description  authorizing  the  postmaster  to  de- 
mand letter  postage.  From  the  return  of  the  justice,  no  facts 
appear  to  indicate  an  intentional  marking,  nor  are  there  any 
facts  showing  the  contrary ;  and  as  the  return  does  not  pur- 
port to  give  the  whole  evidence,  I  think  we  must  intend  that 
the  defendant  failed  to  establish  a  defence,  and  that  the  facts 
proved  justified  the  finding  of  the  jury. 

I  am  of  the  opinion  that  the  judgments  of  the  courts  below 
should  be  affirmed. 

Judgment  aiiinned. 


550 


CASES  IN  THE  COURT  OF  APPEALS. 


Gilbert  r.  Wiman. 


550 

s49  AD  359n 


12 

e48 

48 

63 

72 

79 

e83 

103 

137 


»304 
'536 
'537 
2390 
'267 
'127 
*  61 
»530 
4441 


GILBERT  vs.  WIMAN  and  others. 

In  contracts  of  indemnity  where  the  obligation  is  to  perform  some  specific  thing  or  to 
save  the  obligee  from  a  charge  or  liability,  it  seems  the  contract  is  broken  when  there 
is  a  failure  to  do  the  specific  act,  or  when  such  charge  or  liability  is  incurred. 

But  where  the  obligation  is  that  the  party  indemnified  shall  not  sustain  damage  or 
molestation  by  reason  of  the  acts  or  omissions  of  another,  or  by  reason  of  any  lia- 
bility incurred  through  such  acts  or  omissions,  there  is  no  breach  until  actual 
damage  is  sustained. 

And  in  such  cases  a  judgment  recovered  against  the  party  indemnified,  on  account 
of  the  acts  or  neglect  of  another  for  which  he  is  answerable,  without  payment  of 
the  judgment,  or  some  part  thereof,  docs  not  entitle  him  to  sustain  an  action 
against  the  indemnitors. 

A  deputy  sheriff  and  his  sureties  executed  to  the  sheriff  a  bond,  conditioned  that  the 
deputy  should  so  demean  himself  in  all  matters  touching  his  duty,  that  the  sheriff 
should  not  sustain  any  damage  or  molestation  by  reason  of  any  act  done  or  liability 
incurred  by  or  through  such  deputy.  The  sheriff  was  sued  and  judgment  re- 
covered against  him  for  a  default  of  the  deputy  in  not  returning  an  execution. 
Other  judgments  were  also  recovered  against  him  and  his  sureties  upon  bonds 
given  to  discharge  himself  from  arrest  under  attachments  issued  against  him  for 
not  returning  other  executions  in  the  hands  of  the  deputy.  No  part  of  the  judg- 
ments having  been  paid  by  the  sheriff,  and  no  actual  damage  being  shown,  held, 
that  there  was  no  breach  of  the  bond  of  the  deputy  and  his  sureties,  and  that  the 
sheriff  could  not  maintain  an  action  thereon. 

THIS  was  an  action  of  debt  instituted  in  the  supreme  court 
by  Jabez  H.  Gilbert  against  Stephen  Luce,  Gideon  H.  Wood- 
ruff, Truman  Wiman  and  Lucas  Van  Schaack,  upon  a  bond 
executed  by  the  defendants  in  the  words  following1,  viz : 

"  Know  all  men  by  these  presents,  that  we,  Stephen  Luce, 
Gideon  II.  Woodruff,  Lucas  Van  Schaack,  Truman  Wiman, 
are  held  and  firmly  bound  unto  Jabez  H.  Gilbert,  Esqr.,  sheriff 
of  the  county  of  Oswego,  in  the  penal  sum  of  ten  thousand  dol- 
lars, for  which  payment  well  and  truly  to  be  made  to  the  said 
Jabez  II.  Gilbert,  his  executors,  administrators  and  assigns,  we 
bind  ourselves,  our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents.  Sealed  with  our  seals, 
and  dated  this  eleventh  day  of  May,  one  thousand  eight  hun- 
dred and  thirty-eight.  The  condition  of  this  obligation  is  such, 
that  whereas  the  said  Stephen  Luce  has  been  appointed  to  the 


ALBANY,  DECEMBER,  1848. 


Gilbert  V  Wiman. 


office  of  deputy  sheriff  by  the  above  named  Jabez  H.  Gilbert, 
sheriff  as  aforesaid  —  Now  therefore,  if  the  said  Stephen  Luce 
shall  so  demean  himself  in  all  matters  touching  his  duty  as 
such  deputy  sheriff,  that  the  said  sheriff  shall  not  sustain  any 
damage  or  molestation  whatsoever  by  reason  of  any  act  from 
this  date  done,  or  any  liability  incurred  by  and  through  said 
deputy,  then  this  obligation  to  be  void,  otherwise  of  force. 

STEPHEN  LUCE,  (L.  s.) 
G.  H.  WOODRUFF,  (L.  s.) 
TRUMAN  WIMAN,  (L.  s.) 
L.  VAN  SCHAACK,  (L.  s.)" 

The  declaration  assigned,  as  the  first  breach  of  the  condition 
of  the  bond,  that  Luce  as  such  deputy  sheriff  neglected  to  re- 
turn an  execution  placed  in  his  hands  for  collection,  and  that 
on  account  of  such  neglect  the  plaintiffs  in  the  execution  brought 
an  action  against  the  plaintiff  in  this  suit,  as  sheriff,  and  recov- 
ered judgment  against  him  for  $441,18.  There  was  no  aver- 
ment that  the  plaintiff  had  paid  any  part  of  this  judgment.  In 
the  assignment  of  the  second  breach  it  was  stated  that  the  said 
Luce  neglected  to  return  another  execution  placed  in  his  hands, 
and  that  on  account  of  such  neglect  the  plaintiff,  as  such  sheriff, 
was  attached  as  for  a  contempt  of  court  at  the  instance  of  the 
plaintiffs  in  the  execution,  and  held  in  custody  until  he  gave 
bail  for  his  appearance  to  answer  to  the  attachment;  that  he 
failed  to  appear  on  the  return  of  the  attachment,  by  reason 
whereof  the  bail  bond  became  forfeited  and  was  ordered  by  the 
court  to  be  prosecuted  ;  and  that  the  plaintiff  and  his  sureties 
in  such  bond  were  sued  and  judgment  recovered  against  them; 
but  there  was  no  averment  that  any  part  of  that  judgment  had 
been  paid.  The  third  and  fourth  breaches  were  substantially 
like  the  second,  except  that  they  related  to  other  executions 
which  the  deputy  had  neglected  to  return. 

The  defendants  Wiman  and  Van  Schaack  pleaded,  among 
other  pleas,  that  the  said  Stephen  Luce  had  always  well  and 
truly  demeaned  himself  in  all  matters  touching  his  duty  as  such 
deputy  sheriff,  and  that  the  plaintiff  had  not  sustained  any 
damage  or  molestation  whatsoever  by  reason  of  any  act  done 


552     CASES  IN  THE  COURT  OF  APPEALS. 

Gilbert  v.  Wiman. 

or  liability  incurred  by  or  through  the  said  Stephen  Luce  as 
such  deputy. 

The  cause  was  tried  before  GRIDLEY,  circuit  judge,  in  July, 
1845,  and  on  the  trial  the  plaintiff  proved  the  execution  of  the 
bond  declared  upon,  and  the  substantial  truth  of  the  matters 
averred  in  the  assignment  of  the  several  breaches.  The  aggre- 
gate amount  of  the  judgments  recovered  against  the  plaintiff, 
as  such  sheriff,  mentioned  in  the  several  breaches,  was  shown 
to  be  $2948,41,  but  there  was  no  proof  of  the  payment  of  those 
judgments,  or  any  part  thereof.  It  was  insisted  for  the  plain- 
tiff, that  he  was  entitled  to  a  verdict  for  the  penalty  of  the  bond 
and  to  have  his  damages  assessed  at  the  amount  of  the  judg- 
ments. For  the  defendant,  it  was  insisted  that  without  proof 
of  the  payment  of  the  judgments,  the  plaintiff  was  entitled  to 
nominal  damages  only,  and  so  the  circuit  judge  decided.  To 
this  decision  the  plaintiff  excepted,  and  then  submitted  to  a 
nonsuit  with  leave  from  the  court  and  consent  from  the  defen- 
dant's counsel  to  move  for  a  new  trial.  A  bill  of  exceptions 
was  duly  signed  and  sealed,  on  which  the  supreme  court  sitting 
in  the  fifth  district  granted  a  new  trial.  The  following  is  the 
opinion  of  that  court. 

PRATT,  J.  The  condition  of  the  bond  upon  which  this  action 
is  brought,  is  as  follows,  "  that  if  the  said  Stephen  Luce  shall 
so  demean  himself,  in  all  matters  touching  his  duty  as  such 
deputy  sheriff,  that  the  said  sheriff  shall  not  sustain  any  dam- 
age or  molestation  whatever,  by  reason  of  any  act,  from  the 
date  of  the  said  writing  obligatory,  done,  or  liability  incurred  by 
or  through  said  deputy,  then  the  obligation  to  be  void."  It  is  an 
undertaking  to  save  the  plaintiff  harmless  from  all  damage  or 
molestation,  by  reason  of  any  liability  which  might  be  incurred 
by  him  through  the  acts  of  said  deputy ;  and  the  question  on 
this  obligation  is,  whether  the  sheriff,  after  proving  a  breach  of 
such  obligation,  and  a  fixed  liability  for  a  certain  sum,  in  con- 
sequence thereof  against  himself,  can  recover,  without  proving 
payment  of  the  judgment,  any  more  than  nominal  damages. 

Perhaps  there  is  no  branch  of  law,  concerning  which  the  d&- 


ALBANY,  DECEMBER,  1848.  553 


Gilbert  v.  Wiman. 


cisions  of  our  courts  have  been  more  fluctuating,  than  in  rela- 
tion to  damages,  especially  in  relation  to  the  damages  arising 
upon  contracts,  in  the  nature  of  contracts  of  indemnity.  Ac- 
cording to  strict  legal  principles,  a  court  of  law,  it  would  seem, 
should  only  give  actual  compensation  for  actual  loss  ;  and  such 
is  the  rule  in  relation  to  contracts  of  indemnity  against  damages 
merely.  (Aberdeen  v.  Blackman,  6  Hill,  324 ;  Jackson  v. 
Post,  17  John.  482.) 

So  as  to  covenants  in  relation  to  real  estate,  the  courts  have 
adhered  to  the  same  rule ;  for  instance,  in  a  covenant  against 
incumbrances  in  a  deed  of  real  estate,  although  there  should  be 
found  an  incumbrance  to  twice  the  value  of  the  land,  nothing 
short  of  actual  payment  or  eviction  gives  the  grantee  a  right  to 
recover  any  thing  more  than  nominal  damages.  (  Van  Slyck 
v.  Kembal,  8  John.  198  ;  Stannard  v.  Eldridge,  16  id.  254  ;  id. 
122.)  But  in  personal  contracts,  when  the  instrument  deviate* 
the  least  from  a  simple  contract  to  indemnify  against  dam- 
age, even  where  indemnity  is  the  sole  object  of  the  contract, 
and  where  in  consequence  of  the  primary  liability  of  other  per- 
sons, actual  loss  may  be  sustained,  the  decisions  of  our  courts, 
although  by  no  means  uniform,  have  gradually  inclined  towards 
fixing  the  rule  to  be  one  of  actual  compensation  for  probable 
loss  ;  so  that  in  contracts  of  that  character,  it  may  now  be  con- 
sidered a  general  rule,  both  in  this  country  and  in  England. 
( Thomas  v.  Alden,  1  Hill,  14G  ;  Holmes  v.  Rhodes,  1  Bos.  $• 
Pull.  638 ;  Hodge  v.  Bell,  7  T.  R.  93 ;  Post  v.  Jackson,  17 
John.  239.)  For  instance,  in  an  action  on  a  covenant,  that  a 
bond  or  other  debt  upon  which  the  covenantec  is  liable  shall  be 
paid  when  due,  or  on  a  day  certain,  it  has  been  long  settled 
that  the  plaintiff  may  recover  the  full  amount  of  his  liability, 
although  it  is  evident,  from  the  terms  of  the  contract,  that  it 
was  intended  merely  as  an  indemnity,  and  although  the  par- 
ties, primarily  liable,  arc  abundantly  able  to  pay.  (Mann  v. 
Eckford's  cz'rs,  15  Wend.  502  ;  Ex  parte  Negus,  7  id.  499  ; 
7  T.  R.  97 ;  2  M.  R.  181.)  Indeed,  the  late  supreme  court 
have  gone  so  far,  in  some  recent  cases,  as  to  allow  a  full  recov- 
ery when  it  did  not  appear  that  the  plaintiff  was  liable  at  alL 

VOL.  I.  70 


554  CASES  IN  THE  COURT  OF  At  PEALS. 


Gilbert  v.  Wiman. 


or  could  be  injured  by  a  breach  of  the  contract,  the  court  de- 
ciding that  they  had  a  right  to  infer  that  the  plaintiff  had  some 
interest  in  having  the  debt  discharged,  or  he  would  not  have  made 
the  contract.  ( Thomas  v.  Aldcn,  6  Hill,  146  ;  Tyler  v.  Ives, 
MS.  Sup.  Court,  1839.)  That  the  plaintiff  had  some  interest 
in  such  a  case,  would  be  probable ;  but  that  he  had  an  interest 
to  the  full  amount  of  the  original  indebtedness,  in  the  absence 
of  proof,  seems  to  be  rather  a  violent  presumption  ;  such,  how- 
ever, is  the  effect  of  those  decisions.  In  the  last  case  cited 
above,  Ives  covenanted  with  Tyler  that  Raynor  should  pay  up 
and  discharge  a  bond  and  mortgage  upon  certain  lands.  There 
was  no  evidence  to  show  that  Tyler  had  any  interest  in  the 
lands,  or  in  the  discharge  of  the  bond  and  mortgage,  or  was  in 
any  manner  liable  upon  the  same ;  yet  the  court  held  that  he 
was  entitled  to  recover  the  full  amount  of  the  bond.  So  in  an 
action  on  a  bond  for  the  jail  liberties,  the  sheriff  recovers  the 
whole  amount  of  the  debt,  on  showing  that  he  has  been  made 
legally  liable,  although  he  may  never  be  called  on  to  pay  a 
penny — the  creditor  having  it  in  his  power  to  collect  the  amount 
of  the  original  debtor,  who  may  be  perfectly  responsible.  (Keep 
v.  Brigham,  6  John.  158  ;  7  id.  168.)  So  a  contract  of  indem- 
nity against  liability  is  held  to  be  broken  when  the  liability  is 
incurred,  and  the  measure  of  damages  is  the  full  amount  of 
such  liability.  (  Webb  v.  Pond,  19  Wend.  423  ;  Rockfeller  v. 
Donnelly,  8  Cowen,  623 ;  Chace  v.  Hinman,  8  Wend.  452.) 

Whether  the  rule  laid  down  in  all  these  cases  is  not  a  depar- 
ture from  strict  legal  principles,  it  is  not  profitable  now  to  dis- 
cuss. It  is  said  by  a  late  writer  on  the  subject  of  damages, 
;'  Any  rule  by  which  actual  damages  arc  given,  where  no  actual 
loss  is  sustained,  is  in  truth  nothing  but  an  effort  to  engraft  on 
the  courts  of  common  law  a  species  of  specific  performance,  ir- 
regular and  illegitimate,  and  which  neither  their  forms  of  pro- 
cedure nor  the  general  arrangement  of  their  system  enable  them 
to  exercise  without  great  danger  of  injustice  and  abuse.  The 
rule  should  be  considered  cardinal  and  absolute,  that  actual 
compensation  shall  only  be  given  for  actual  loss.'1'  (Sedgwlck 
on  Damages,  311.)  However  true  these  remarks  may  be  in 
die  abstract,  and  we  admit  their  force,  the  rule  is  now  settled 


ALBANY,  DECEMBER,  1848.  555 


Gilbert  v.  Wiman. 


by  adjudication  otherwise,  and  we  are  bound  to  follow  it  until 
it  shall  be  changed  by  a  superior  court,  or  the  legislature  shall 
interpose.  The  obligation  in  this  case  may  be  classed  among 
the  contracts  of  indemnity  against  liability — in  which  cases  the 
plaintiff  is  entitled  to  recover  the  amount  of  the  liability  in- 
curred. (  Webb  v.  Pond,  19  Wend.  423  ;  Rockfeller  v.  Don- 
nelly, 8  Cowen,  623  ;  Chace  v.  Hinman,  8  Wend.  452 ;  War- 
wick v.  Richardson,  10  Mees.  $•  Wels.  284 ;  2  Starkie,  167 ; 
1  Burr.  574 ;  5  Carr.  <$•  Payne,  102.)  And  this  is  so,  even 
where  the  contract  is  in  form  to  indemnify  against  damages  to 
be  incurred  in  consequence  of  such  liability.  Indeed,  in  the 
case  of  Rockfeller  v.  Donnelly,  which  was  in  the  court  for  the 
correction  of  errors,  the  decision  of  the  court  went  much  further 
than  is  necessary  to  sustain  the  plaintiff's  claim  in  this  case. 
Although  the  soundness  of  the  principle  adjudged  in  that  case 
has  been  often  questioned,  yet  it  must  be  deemed  to  be  law  in 
this  state,  until  it  shall  be  overruled  by  a  court  of  at  least  equal 
authority.  The  case  of  Chace  v.  Hinman  seems  to  be  directly 
in  point.  The  condition  in  that  case  was,  that  the  obligor 
should  save  harmless  and  indemnify  the  obligee  against  all 
damages,  costs  and  charges  to  which  he  might  in  any  way  be 
subjected  or  become  liable  by  reason,  &c.  It  was  objected  that 
the  plaintiff  should  prove  payment  before  he  could  recover  more 
than  nominal  damages.  But  the  court  held  that  the  plaintiff 
was  entitled  to  recover  the  full  amount  of  the  liability  incurred. 
Leaving  out  the  word  "molestation,"  (upon  which  we  shall 
have  occasion  to  remark,)  the  undertaking  in  that  case,  and 
the  one  under  consideration,  appear  to  be  in  legal  effect  pre- 
cisely the  same.  The  liability  in  both  cases  was  against  the 
damages  arising  therefrom.  We  are  unable  to  distinguish  be- 
tween them.  We  are  aware  that  the  soundness  of  the  principle 
adjudged  in  that  case  was  questioned  by  Chief  Justice  Bronson, 
in  Aberdeen  v.  Blackmar,  but  he  admits,  and  such  is  the  fact, 
that  it  only  carries  out  the  principle  decided  in  Rockfeller  v. 
Donnelly.  We  are  not  aware  that  either  of  the  cases  have 
been  overruled. 

In  this  case  the  plaintiff,  by  the  contract,  was  not  only  to  be 
saved  harmless  from  damages,  but  also  from  molestation.  Now 


556  CASES  IN  THE  COURT  OF  APPEALS. 


Gilbert  ».  Wiman. 


whether  the  commencement  of  a.  suit  and  the  recovery  of  a 
judgment  against  the  plaintiff,  is  molesting  him  within  the 
strict  sense  of  the  term,  no  one  will  deny,  we  apprehend,  that 
nn  arrest  by  an  officer,  under  an  attachment,  is  a  molestation 
of  no  mild  or  trifling  character,  and  such  seems  to  have  been 
the  holding  at  the  circuit,  or  the  plaintiff  could  not  have  recov- 
ered nominal  damages.  It  becomes  us  to  inquire  whether  there 
were  no  other  damages  legitimately  resulting  in  consequence 
of  such  arrest  or  molestation.  The  party  is  entitled  to  such 
damages  as  naturally  flow  from  the  breach  complained  of,  the 
injury  sustained,  and  that  not  the  actual  but  the  probable  loss. 
The  sheriff  finds  himself  under  arrest  and  is  taken  before  the 
court  and  fined  the  amount  of  the  execution,  which  his  deputy 
neglected  to  return.  It  seems  to  us  that  this  fine  is  a  necessary 
result  of  the  arrest,  and  should  measure  the  damages.  If  there 
was  any  excuse  for  the  deputy's  negligence,  by  which  the  fine 
might  be  averted,  it  was  the  deputy's  duty  to  interpose  it.  We 
assume,  therefore,  that  there  was  no  such  excuse.  Why  then, 
as  the  fixed  liability  was  the  inevitable  and  immediate  conse 
quence  of  the  molestation  or  arrest,  should  it  not  be  the  measure 
jf  damages,  as  well  as  in  a  suit  on  a  bond  for  the  jail  liberties  ?  In 
both  cases  there  might  be  a  possibility  of  collecting  the  debt  of  the 
original  debtor.  It  is  in  the  nature  of  a  tort  on  the  part  of  the  dep- 
uty, and  may  be  likened  to  a  recovery  against  the  principal  for 
the  negligence  of  his  agent  or  servant.  The  judgment  against 
the  principal  is  the  measure  of  damages  in  a  suit  by  him  against 
his  agent  or  servant,  whether  he  has  paid  the  same  or  not. 

In  this  case  a  bond  was  given,  and  the  recovery  against  the 
sheriff  was  had  on  that  bond.  This  was  only  a  more  circuitous 
way  of  arriving  at  the  same  result.  The  ultimate  liability  of 
the  sheriff  is  the  same,  and  inevitably  follows  the  arrest,  unless* 
the  sheriff  should  appear,  and  then  he  would  only  escape  liabil- 
ity on  the  bond,  by  subjecting  himself  to  a  fine  for  the  same 
amount.  As  the  law  now  stands  we  think  the  plaintiff  is  en 
titled  to  recover  the  amount  of  the  liability  proved. 

From  the  decision  of  the  supreme  court  the  defendants  appeal 
ed  to  this  court  according  to  the  judiciary  act  of  December,  1847 


ALBANY,  DECEMBER,  1848.  557 

Gilbert  v.  Wiman. 

H.  A.  Foster,  for  the  plaintiff.  The  plaintiff  was  entitled 
to  recover  the  amount  of  the  several  judgments  recovered 
against  him  ;  the  circuit  judge  erred  in  deciding  that  he  was 
entitled  only  to  nominal  damages ;  and  the  supreme  court 
decided  right  in  granting  a  new  trial.  When  the  obligation  is 
to  indemnify  against  damages  and  expenses,  and  the  obligee 
has  become  absolutely  bound  and  liable  to  pay  the  expense  or 
damage,  he  may  enforce  his  remedy  on  the  obligation.  (Rock- 
feller  v.  Donnelly,  8  Cowen,  per  Jones,  chancellor,  639,  640 ; 
also  per  Spencer,  senator,  657,  658,  659.)  In  Rockfeller  v. 
Donnelly,  the  court  for  the  correction  of  errors  held,  on  a  bond 
to  save,  defend  and  keep  harmless  the  overseers  of  the  poor 
and  inhabitants  of  a  town,  of,  from  and  against  all  costs, 
charges,  rates,  assessments,  damages  or  expenses,  by  reason  of 
the  birth,  education  and  maintenance  of  a  bastard  child,  to  be 
born,  and  of  and  from  all  actions,  suits,  troubles,  damages  and 
demands  touching  the  same,  that  after  the  birth  of  the  child 
and  order  of  the  justices  directing  the  weekly  allowance,  an 
action  could  be  maintained  upon  the  bond  by  the  overseers,  to 
recover  the  weekly  allowance  to  the  time  of  the  commencement 
of  the  suit,  without  having  paid  any  part  thereof. 

Where  a  party  has  an  indemnity  not  only  against  actual 
damages  and  expenses,  but  against  any  liability  for  damages 
or  expenses,  he  need  not  wait  to  commence  his  suit  until  he 
has  actually  paid  such  damages  ;  his  right  of  action  is  com- 
plete, for  the  whole  amount,  when  he  becomes  legally  liable 
for  them.  (Chace  v.  Hinman,  8  Wend.  452;  Warwick  v. 
Richardson,  10  Mees.  fy  Wels.  284  ;  Sparks  v.  Martindale, 
8  East,  593  ;  Wood  v.  Wade,  2  Stark.  Rep.  146 ;  Brougk- 
ton's  case,  5  Coke's  Rep.  24  ;  Rosse  v.  Pye,  Yclv.  207 ;  Cutler 
v.  Southern,  1  San  fid.  Rep.  116  :  8  Watts,  157 ;  9  Yerger,  20  ; 
1  Hen.  $>  Mun.  459  ;  2  Bay,  145  ;  19  Wend.  423.) 

In  personal  contracts,  when  the  instrument  deviates  the  least 
from  a  simple  contract  to  indemnify  against  damage,  even 
when  indemnity  is  the  sole  object  of  the  contract,  where  actual 
loss  may  be  sustained  in  consequence  of  the  primary  liability 
of  others,  the  decisions  have  gradually  inclined  toward  fixing 
the  rule  to  be  one  of  actual  compensation  for  probable  loss. 


558     CASES  IN  THE  COURT  OF  APPEALS. 


Gilbert  v.  Wiman. 


(See  cases  cited  in  the  opinion  of  the  supreme  court.)  Thus,  10 
an  action  on  covenant,  that  a  bond  or  debt  on  which  the  cove 
nantee  is  liable  shall  be  paid  when  due,  the  plaintiff  may 
recover  the  full  amount  of  his  liability.  (Ex  parte  Negus, 
7  Wend.  499  ;  Thomas  v.  Alden,  1  Hill,  146  ;  Mann  v.  Eck- 
fortfs  Etfrs,  15  Wend.  502 ;  Hodgson  v.  Bell,  7  T.  R.  97 ; 
Challoner  v.  Walker,  1  Burr.  574 ;  5  Carr.  #•  Payne,  102.) 
When  a  judgment  has  been  recovered  against  the  principal 
for  the  negligence  or  unskilfulness  of  the  agent,  he  may  main- 
tain his  action  against  the  agent,  if  he  had  notice  of  the  suit 
against  the  principal.  (Mainwarring  v.  Brandon,  8  Taunt. 
202.)  And  the  verdict  fixes  the  amount  to  be  recovered. 
(Dunl.  Palcy  on  Agency,  7.)  The  rule  is  the  same  between 
master  and  servant.  Upon  an  implied  warranty  of  title  to  per- 
sonal property,  or  false  affirmation  of  ownership,  by  the  vendor, 
when  a  recovery  has  been  had  against  the  vendee  by  the  true 
owner,  he  may  sue  and  recover  against  the  vendor,  before  pay- 
ing the  judgment.  (Barney  v.  Dewey,  13  John.  Rep.  224  ; 
Blasdale  v.  Babcock,  1  id.  517.)  A  sheriff"  may  recover  on  a 
bond  for  the  jail  limits,  the  amount  of  the  debt,  without  actual 
payment  by  him  ;  and  yet  it  is  only  a  bond  to  indemnify  and 
save  harmless.  (Janson  v.  Hilton,  10  John.  Rep.  549  ;  Barry 
v.  Mendell,  id.  563 ;  Kipp  v.  Brigham,  6  id.  158 ;  7  id.  168.) 
So  he  may  recover  against  the  debtor,  who  has  escaped  on  final 
process,  whereby  the  sheriff  has  become  liable,  before  he  has 
paid  the  debt.  (Sheriffs  of  Norwich  v.  Bradshaw,  Cro.  Eliz. 
53.)  He  may  recover  against  the  keeper  of  a  lock-up-house, 
for  the  escape  of  a  prisoner  committed  to  his  custody,  upon  his 
promise  to  keep  him  safely  and  save  the  sheriff  harmless  for 
any  escape  ;  and  this  even  before  suit  against  himself.  (Bark 
Icy  and  Gibbs  v.  Kcmpstow,  Cro.  Eliz.  123.)  He  may  also 
recover  upon  the  bond  of  his  under  sheriff  or  deputy,  for  an 
escape  on  execution  or  for  improperly  discharging  property  at- 
tached on  mcsne  process ;  although  lie  has  not  paid  the  debt 
to  the  plaintiff.  (Norton  \.  Simmcs,  Hobcrt,  12  (c.) ;  Cooper 
v.  IMoicrcy  and  others,  16  Mass.  Rep.  5  )  On  a  bond  by 
deputy  to  the  mar.shnl  "  to  keep  the  marshal  clear,  free  and 
indemnified"  a  breach  that  lie  failed  to  return  executions 


ALBANY,  DECEMBER,  1848.  559 


Gilbert  ».  Wiman. 


(specifying   them)  is  well   assigned.     (Lewis  v.   Crockett,  3 
Bibb,  196.) 

Geo.  F.  Comstock,  for  the  defendants.  The  general  rule 
in  regard  to  contracts  of  indemnity  is  that  courts  of  law 
can  only  give  actual  compensation  for  actual  loss.  The  line 
which  separates  the  jurisdictions  of  law  and  equity  is  here 
visible.  In  courts  of  equity,  on  the  principle  of  quia  timet,  a 
party  who  is  under  a  liability,  and  has  a  counter  indemnity, 
can  compel  the  indemnitor  to  perform  specifically,  so  as  to 
exonerate  him  from  his  liability.  (2  Story's  Eq.  §  850 ;  id. 
§  815 ;  6  John.  Ch.  406.)  Courts  of  law  have  no  jurisdiction 
of  this  nature.  They  can  only  give  compensation  for  actual 
loss ;  and  this  distinction  between  the  two  jurisdictions  is 
founded  in  sound  policy,  and  ought  to  be  maintained.  In  the 
present  case,  it  would  be  a  specific  performance  of  the  defen- 
dants' contract  for  them  to  pay  the  creditors  whose  executions 
have  not  been  returned,  and  thus  exonerate  the  sheriff  from 
his  liability ;  but  a  court  of  law  cannot  call  before  it  the  neces- 
sary parties,  nor  are  its  powers  and  functions  adapted  to  that 
result.  The  plaintiff  may  recover  the  sum  demanded,  but 
there  is  no  guaranty  that  it  will  go  to  its  proper  destination — 
the  satisfaction  of  the  execution  creditors ;  nor  would  such 
a  recovery  prevent  the  creditors  from  still  enforcing  their 
executions. 

In  all  the  cases  where  it  is  supposed  courts  of  law  have  gone 
beyond  the  rule  of  compensation  for  actual  loss  only,  it  will  be 
found  on  a  careful  examination  that  the  contracts  were  very 
different  from  the  one  in  question.  They  were  affirmative  en- 
gagements for  the  performance  of  some  specific  thing,  and  not 
to  indemnify  against  loss  or  damage  by  reason  of  the  non 
performance  of  the  thing  specified.  Such  are  the  cases  referred 
to  in  the  opinion  of  the  supreme  court,  and  such  are  all  the 
cases  of  any  authority  cited  on  the  other  side.  In  Rockfeller 
v.  Donnelly,  the  condition  of  the  bond  was  to  save  the  overseers 
against  all  charges,  &c.  This  was  construed  as  a  condition 
that  no  liability  should  come  upon  the  town.  The  decision  of 
that  case  was  also  placed  very  much  upon  the  intent  and  policy 


560  CASES  IN  THE  COURT  OF  APPEALS. 

Gilbert  v.  Wiman. 

of  the  statutes  under  which  the  bond  had  been  taken.  In 
Chase  v.  Hinman,  the  condition  of  the  bond  was  to  indemnify 
against  a  liability,  and  the  decision  of  that  case  can  only  be  sus- 
tained upon  the  ground  that  the  language  used  amounted  to  a 
condition  that  no  liability  should  occur.  But  the  principle  of 
that  case  was  disapproved  in  Aberdeen  v.  Blackmar,  (6  Hill, 
324,)  and  the  case  itself  was  overruled  in  Churchill  v.  Hunt, 
(3  Denio,  321.)  In  the  cases  of  the  bonds  given  for  the  jail 
liberties,  (6  Johns.  Rep.  158,  7  id.  168,)  the  condition  was 
that  the  debtor  should  remain  a  true  and  faithful  prisoner. 
Of  course  this  was  broken  the  moment  the  escape  took  place. 
The  case  of  Warwick  v.  Richardson,  (10  Mees.  fy  Welsby, 
284,)  was  in  principle  very  much  like  Rockfeller  v.  Donnelly, 
already  referred  to. 

In  the  case  before  the  court,  the  condition  of  the  bond  is  not 
to  save  or  indemnify  against  a  liability.  It  is  that  the  sheriff 
shall  sustain  no  damage  or  molestation  by  reason  of  liability, 
&c.  In  other  words,  it  is  simply  a  bond  of  indemnity  against 
damage  or  molestation ;  and  the  well  established  doctrine  in 
such  cases  is  that  actual  loss  must  be  shown.  (Cutler  v. 
Southern,  1  Saund.  116,  n.  1 ;  Douglass  v.  Clark,  14  John. 
177  ;  Aberdeen  v.  Blackmar,  6  Hill,  324  ;  Churchill  v.  Hunt, 
3  Denio,  321 ;  Sedgwick  on  Damages,  311,  31 2,  314,  317,  318.) 
The  word  "  molestation"  adds  nothing  to  the  force  of  the  bond. 
It  does  not  mean  a  mere  mental  annoyance  occasioned  by  a 
suit  or  attachment.  Like  the  word  damage,  it  refers  to  some 
actual  pecuniary  loss.  Such  is  the  construction  it  has  always 
received  in  covenants  for  quiet  enjoyment,  where  it  usually 
occurs. 

The  circumstance  that  judgments  have  been  recovered 
against  the  plaintiff  on  account  of  the  default  of  his  deputy, 
does  not  at  all  change  the  question.  The  sheriff  became  liable 
to  the  execution  creditors  the  moment  the  deputy  was  in  de- 
fault, and  he  was  no  more  than  liable  after  the  judgments  were 
recovered  against  him.  The  only  effect  of  the  judgments  was 
to  change  the  onus  of  proof.  They  did  not  create  the  liability. 
If  they  were  obtained  upon  due  notice  to  the  deputy  and  his 
sureties,  they  arc  conclusive  evidence  simply  that  the  deputy 


ALBANY,  DECEMBER,  1848.  561 

Gilbert  v.  Wiman. 

was  in  default,  and  of  the  amount  of  the  sheriff's  liability  occa- 
sioned by  such  default.  (Per  Branson,  J.  in  Aberdeen  v, 
Blackmer,  6  Hill,  324.) 

GARDINER,  J.  delivered  the  opinion  of  the  court.  The  principal 
question  in  this  case  is,  whether  the  bond  executed  by  Luce  and 
his  sureties  is  a  mere  bond  of  indemnity,  requiring  proof  of  actual 
damage,  or  whether  it  provides  an  indemnity  against  the  liability 
of  the  sheriff  on  account  of  the  acts  done  or  omitted  by  his  deputy. 

The  cases  of  Rockfeller  v.  Donnelly,  (8  Cowen,  623,)  and 
Chase  v.  Hinman,  (8  Wend.  452.)  have  been  relied  upon,  par- 
ticularly the  former,  as  decisive  of  this  question.  In  the  case 
first  cited,  the  action  was  upon  a  bastardy  bond,  the  condition 
of  which  was  "  to  save,  defend  and  keep  harmless  the  overseers 
of  the  poor,  and  the  inhabitants  of  the  town,  from  and  against 
all  charges,  damages  and  expenses,  taxes,  rates  and  assess- 
ments, for  or  by  reason  of  the  birth,  education  and  maintenance 
of  the  child,"  then  unborn.  The  two  judges  who  delivered  the 
prevailing  opinion  in  the  court  of  errors,  agree  that  in  its  legal 
effect  the  instrument  was  a  bond  of  indemnity  against  the 
charge  to  be  created  by  the  expected  birth  of  a  bastard  child. 
(Id.  653.)  The  chancellor  remarked,  "  the  town  was  damnified 
by  the  '  charge'  which  was  brought  upon  it  by  the  birth  of  the 
bastard.  The  law  imposes  on  the  officers  of  the  town  the  lia- 
bility and  duty  of  providing  necessaries  for  the  infant,  and  it 
was  against  this  legal  obligation  that  the  defendants  bound 
themselves  to  indemnify  the  plaintiff."  Senator  Spencer  re- 
marked that  '•  the  condition  was  broken  the  moment  the  child 
was  born,  for  then  it  became  a  charge  upon  the  town."  (Id. 
653.)  The  construction  given  by  the  learned  judges  therefore 
to  the  bond  in  that  suit  was  that  it  provided  for  an  indemnity 
against  a  legal  liability.  The  case  of  Chase  v.  Hinman, 
(supra.^)  was  an  action  on  a  bond,  the  condition  of  which  was 
that  the  obligor  should  "  save  harmless  and  indemnify  the 
obligee  against  all  damages,  costs  and  charges,  to  which  he 
might  in  any  way  be  subjected,  or  become  liable  for ',"  &c.  No 
money  was  paid  ;  and  it  was  held  by  the  court  that  by  the 

VOL.  I.  71 


562  CASES  IN  THE  COURT  OF  APPEALS. 


Gilbert  v.  Winian. 


instrument  itself  a  distinction  was  obviously  taken  between 
damages  actually  sustained,  and  a.  fixed  legal  liability  for  such 
damages,  and  that  the  indemnity  was  against  both. 

The  condition  of  the  bond  before  us  is  as  follows :  "  Now 
therefore,  if  the  said  Stephen  Luce  shall  so  demean  himself  in 
all  matters  touching  his  duty  as  such  deputy  sheriff,  that  the 
said  sheriff  shall  not  sustain  any  damage  or  molestation  what- 
soever, by  reason  of  any  act  from  this  date  done  or  any  lia- 
bility incurred  by  and  through  said  deputy,  then  the  obligation 
to  be  void."  The  distinction  between  the  bond  in  question 
and  those  above  mentioned,  consists,  I  apprehend,  in  this,  that 
by  the  former  a  "  charge"  or  "  fixed  legal  liability"  is  declared 
to  be  the  injury  from  which  the  obligee  is  to  be  saved  harmless. 
By  the  condition  of  the  latter,  the  obligor  stipulates  that  the 
sheriff  shall  not  sustain  any  damage  or  molestation  by  reason 
of  any  liability,  &c.  By  the  former,  he  is  to  be  saved  from  the 
thing  specified.  By  the  latter,  from  its  consequences,  or  in 
other  words,  from  the  damage  or  molestation  which  may  result 
from  the  liability. 

The  distinction  is  very  important.  It  is  recognized  in  the  cases 
to  which  reference  has  been  made,  and  in  others,  and  will  be 
found  to  pervade  most  of  the  authorities  which  have  been 
cited.  It  is  the  distinction  between  an  affirmative  covenant  for 
a  specific  thing,  and  one  of  indemnity  against  damage  by  rea- 
son of  the  non-performance  of  the  tiling  specified.  The  object 
of  both  may  be  to  save  the  covenantee  from  damages,  but  their 
legal  consequences  to  the  parties  are  essentially  different. 
Thus,  in  Kip  v.  Brigham,  (7  John.  Rep.  168,)  the  condition 
of  the  bond  was  that  the  debtor  "  should  remain  a  true 
and  faithful  prisoner  and  not  escape  ;  and  that  he  should 
not  at  any  time  escape  or  go  without  the  limits."  The 
prisoner  escaped,  the  very  act  to  which  the  covenant  applied, 
and  it  was  held  a  breach,  and  the  liability  of  the  sheriff  the 
measure  of  damages.  The  court,  in  6  John.  Rep,  159,  say,  it 
is  true  that  the  bond  was  in  effect  a  bond  of  indemnity; 
but  they  nowhere  intimate  that  the  rights  and  remedy  of 
the  obligee  in  the  two  cases  were  identical.  So  in  War- 
wick \.  Richardson,  (10  Mecs.  $•  Wclsby,  284,)  trust  mo- 


ALBANY,  DECEMBER,  1848.  553 

Gilbert  v.  Wiman. 

neys  were  left  by  the  testator  in  the  hands  of  a  co  trustee  to 
be  used  in  trade.  The  latter  executed  a  bond,  the  condition  of 
which  was  to  save,  defend,  and  keep  harmless  the  obligee  from 
all  suits,  claims  and  demands,  &c.  prosecuted  or  made  against 
him.  A  decree  was  obtained  by  the  cestuis  que  trust  against 
the  plaintiff's  testator  for  the  trust  money.  The  court  say  that 
the  obligor  in  order  to  save  the  obligee  harmless  from  this  claim, 
ought  to  have  invested  the  trust  moneys  pursuant  to  the  will. 
Not  having  done  so,  the  proper  amount  of  damages  is  the 
amount  to  which  the  claim  subjected  the  obligee.  The  obligee 
was  to  be  saved  from  any  claim.  This  was  the  act  to  be 
done.  Its  non-performance  was  the  breach,  and  the  legal  lia- 
bility of  the  obligor  the  measure  of  damages.  The  cases  of 
Thomas  v.  Allen,  (I  Hill,  145,)  and  Churchill  v.  Hunt,  (3  De- 
nio,  321,)  are  to  the  same  effect. 

Justice  Beardsley  states  the  obvious  truth  in  Churchill  v. 
Hunt,  that  upon  obligations  of  this  sort,  the  right  of  action  be- 
comes complete  on  the  defendant's  failure  to  do  the  particular 
thing  he  agreed  to  perform.  Non-damnificatus  cannot  be 
pleaded  in  such  cases,  although  it  may  be  where  the  condition 
is  to  acquit  the  plaintiff  of  any  damage  by  reason  of  the  par- 
ticular thing.  (1  Sounders,  116,  n. ;  1  Hill,  146.)  It  is  be- 
lieved that  all  the  cases  referred  to  by  the  learned  judge  of  the 
supreme  court  whose  opinion  is  before  us,  may  be  reconciled 
upon  the  principle  above  suggested.  Here  the  defendant  agreed 
that  the  plaintiff  should  not  sustain  any  damage,  which  means 
actual  damages,  by  reason  of  any  liability  incurred  by  the  act 
of  the  deputy.  The  case  is  therefore  within  the  principle 
stated  in  the  note  to  Saunclers. 

The  word  molestation  cannot  enlarge  the  condition  beyond 
what  would  be  implied  from  the  word  damage.  The  former 
occurs  frequently  in  covenants  for  quiet  enjoyment,  and  against 
incumbrances.  Nothing  short  of  an  eviction,  or  in  the  case  of 
the  latter  covenant,  the  payment  of  money  on  account  of  the 
incumbrance,  will  entitle  a  party  to  recover,  however  much  he 
may  have  been  annoyed,  troubled  or  molested.  Indeed  damage 
is  much  the  most  comprehensive  word  of  the  two  ;  molestation, 
if  it  has  any  legal  meaning,  being  but  a  species  of  damage. 


561 


CASES  IN  THE  COURT  OF  APPEALS. 


Molt  r.  Palmer. 


The  plaintiff  having  failed  to  establish  a  breach  of  the  con- 
dition of  the  bond,  was  not  in  strictness  entitled  to  nominal 
damage.  But  as  the  error  can  work  no  injury  to  the  parties,  a 

new  trial  must  be  denied. 

New  trial  denied. 


564 
'350 
'352 
•283 
*381 
3382 
'322 
•  26 
'251 
'254 
'481 
1  89 
*508 
'490 
'218 

3  K    '350 
3K    '352 

4  AbD  57 
4  AbD  59 
ITr    357 
ITr    358 


MOTT  vs.  PALMER. 

The  covenant  of  seisin  is  broken  if  the  grantor  at  the  time  of  the  conveyance  do  not 
own  such  things  affixed  to  the  freehold  as  would  pass  to  the  grantee  by  a  convey- 
ance of  (he  land  itself. 

Accordingly  where  the  grantor  covenanted  in  the  conveyance  that  he  was  the  lawful 
owner  of  the  premises  and  seised  of  a  good  and  indefeasible  inheritance  therein, 
and  a  quantity  of  rails  erected  into  fence  standing  on  the  premises  was  the  prop- 
erty of  another  person  by  virtue  of  a  previous  agreement  made  with  the  grantor; 
held,  that  the  grantee  might  maintain  an  action  against  the  grantor  for  a  breach  of 
the  covenant  of  seisin. 

(t  seems  that  rails  built  into  fence  by  a  tenant,  under  an  agreement  that  he  may 
remove  them  from  the  land,  are,  as  between  such  tenant  and  the  owner  of  the  soil, 
personal  property. 

PALMER  brought  an  action  of  covenant  against  Mott  in  the 

o  o 

common  pleas  of  Columbia  county,  in  which  court  the  cause  was 
tried  in  October,  1846.  The  case  was  this :  On  the  25th  of 
December,  1841,  the  defendant  conveyed  to  the  plaintiff  certain 
premises  situated  in  Chatham,  Columbia  county,  covenanting 
in  the  conveyance  that  at  the  delivery  thereof  he  was  the  laic- 
ful  owner  of  the  prc?niscs  granted,  and  seised  of  a  good  and 
indefeasible  estate  of  inheritance  therein  clear  of  all  incnm 
brancc.  A  quantity  of  rails  erected  into  a  fence  which  stood  on 
the  premises  at  the  time  the  deed  was  executed  was  not  in  fact 
the  property  of  the  grantor,  but  belonged  to  one  Brown,  the 
owner  of  adjoining  lands.  Brown  had  cut  the  rails  from  his 
own  land  and  built  the  fence  in  1810,  under  an  agreement  with 
the  defendant  by  which  he  was  to  enclose  temporarily  a  part  of 
the  defendant's  land  and  occupy  it  as  tenant,  with  leave  to 
remove  the  rails  whenever  lie  saw  fit  to  do  .vo.  Under  this 
agreement  Brown  occupied  that  part  of  the  land  in  the  season 
of  1811.  and  it  was  enclosed  by  the  fence  in  question  when  tho 
above  deed  was  executed.  The  plaintiff,  after  his  purchase 


ALBANY,  DECEMBER,  1848.  555 

Mott  v.  Palmer. 

the  premises,  went  into  possession,  and  in  the  year  following 
took  the  rails  and  converted  them  to  his  own  use,  and  for  this 
he  was  sued  by  Brown  in  a  justice's  court,  and  judgment  re- 
covered against  him  for  the  value  of  the  rails.  The  defendant 
Mott  was  present  on  the  trial  of  that  suit  and  was  sworn  as  a 
witness.  It  was  claimed  on  the  part  of  the  plaintiff  that  these 
facts  constituted  a  breach  of  the  covenant  of  seisin,  inasmuch 
as  the  fence  in  question  was  at  the  time  the  conveyance  was 
executed  the  personal  property  of  Brown.  The  defendant's 
counsel  requested  the  court  to  charge  the  jury,  that  if  the  fence 
was  the  personal  property  of  Brown  at  the  date  of  the  deed,  the 
plaintiff  could  not  recover  for  a  breach  of  the  covenant  of  seisin, 
but  that  his  remedy  would  be  an  action  on  the  case.  The 
court  refused  so  to  charge,  and  instructed  the  jury  that  if  they 
found  the  facts  to  be  as  they  are  above  stated,  the  plaintiff  was 
entitled  to  recover  the  value  of  the  rails.  The  defendant  ex- 
cepted.  The  jury  found  a  verdict  for  the  plaintiff,  on  which 
judgment  was  rendered.  The  supreme  court  sitting  in  the 
third  district  affirmed  the  judgment,  and  the  plaintiff  brought 
error  to  this  court. 

N.  Hill,  Jim.  for  the  plaintiff  in  error.  To  entitle  the  plain- 
tiff below  to  recover,  it  must  be  shown  that  there  was,  at  the 
time  of  giving  the  deed,  an  outstanding  estate  in  some  third 
person  of  freehold  at  least,  so  as  to  interfere  with  the  grantor's 
power  of  conveying  and  transmitting  by  descent.  (4  Kent's 
Com.  386,  7 ;  1  Hill  Abr.  104,  note  ;  2  Wend.  166.)  It  can- 
not be  pretended  that  Brown  had  such  an  estate.  His  right 
was  that  of  a  tenant,  for  a  short  period,  with  the  privilege  of 
taking  away,  when  he  left,  the  rails  he  had  placed  upon  the 
Land  to  enable  him  to  use  it.  Neither  this  outstanding  tenancy, 
nor  any  of  the  incidental  privileges  connected  with  it,  interfered 
with  the  estate  of  the  grantor,  so  as  to  divest  his  seisin. 

The  action  is  unprecedented  and  anomalous.  No  trace  of 
any  thing  like  it  can  be  found  in  the  books.  It  proceeds  upon 
a  course  of  reasoning  which  finds  no  countenance  in  the  cases 
hitherto  decided.  The  declaration  itself  is  necessarily  incon- 
gruous and  absurd.  It  admits  that  the  grantor  was  properly 


566  CASES  IN  THE  COURT  OF  APPEALS. 


Mott  v.  Palmer. 


seised  of  the  land  described  in  the  deed,  and  then  asserts  that 
the  rails  in  question  were  part  and  parcel  of  and  attached  to 
the  soil  and  freehold.  If  this  allegation  is  true,  the  plaintiff 
below  acquired  a  valid  title  to  the  rails  ;  and  his  right  of  recov- 
ery, therefore,  must  be  established,  not  by  proving  what  he 
has  thus  far  alleged,  but  by  disproving'  it.  The  declaration, 
however,  alleges  further,  that  the  grantor,  though  duly  seised 
of  the  soil  and  freehold,  was  not  seised  of  an  indefeasible  estate 
of  inheritance  in  the  rails,  and  then  proceeds  to  show  that  they 
were  the  personal  property  of  Brown — a  species  of  property 
which  the  deed  does  not  purport  to  convey. 

It  is  not  true  that  the  covenant  of  seisin  extends  to  every 
thing  which  would  pass  under  the  deed  as  between  vendor  and 
vendee  where  no  right  of  a  third  person  intervenes.  As  between 
vendor  and  vendee,  a  deed  like  the  one  in  question  purports  to 
transfer  not  only  the  unqualified  property  in  the  soil,  but  the 
exclusive  right  of  using  it.  And  yet  it  is  settled  that  a  public 
highway  over  the  land,  which  implies  an  outstanding  right  to 
cut  down  trees,  dig  up  the  soil,  and  exclude  the  grantee  from 
the  beneficial  enjoyment  of  it,  is  no  breach  of  the  covenant  of 
seisin.  (15  John.  Rep.  481.)  Outstanding  rights  of  this  na- 
ture, as  the  right  to  pasture  cattle  on  the  land,  (5  Conn.  Rep. 
508,)  to  take  water  from  it,  (15  Pick.  66,  68,)  to  dig  turf,  &c. 
upon  it,  (5  Conn.  508,  9,)  are  within  the  covenant  against 
incumbrances,  but  are  not  reached  by  the  covenant  of  seisin. 
(See  1  /////.  Abr.  394 ;  2  Mass.  Rep.  97 ;  3  New  Hamp.  Rep. 
335  ;  10  Conn.  422  ;  19  Maine  Rep.  313.)  So  as  to  every 
thing  constituting  a  burthen  upon  the  estate,  and  affecting  its 
value,  without  changing  its  essential  character ;  as  an  out- 
standing right  to  have  dower  in  the  land,  (22  Pick.  447,  8;  10 
John.  Rep.  266,)  or  to  occupy  it  as  tenant  for  years.  (2  Speeds 
Rep.  649.) 

It  may  be  said  that  if  this  action  is  not  maintainable,  pur- 
chasers may  be  misled  and  defrauded,  without  the  means  of 
redress.  If  this  were  so,  it  would  not  furnish  an  adequate  reason 
for  extending  the  covenant  of  seisin  beyond  its  appropriate  limits. 
Upon  the  principle  of  the  cases  above  cited,  the  covenant  against 


ALBANY,  DECEMBER,  1848.  557 


Mott  ».  Palmer. 


incumbrances  seems  to  be  the  only  one  applicable  to  an  out- 
standing right  to  enter  and  remove  rails  or  other  things  from 
the  land.  But  conceding  that  no  remedy  exists  upon  the  cove- 
nants in  the  deed,  this  does  not  prove  that  the  purchaser  would 
be  remediless.  If  he  has  been  misled  through  mistake  or  fraud, 
a  court  of  equity  would  set  aside  the  transaction  and  compel  a 
restoration  of  the  purchase  money.  (2  Paige,  84,  91,  2  ;  Sto- 
ry's Eq.  §  140  et  seq.}  And  in  cases  of  fraud,  even  a  court  of 
law  would  furnish  adequate  redress  in  an  action  on  the  case  fov 
damages.  (1  Day,  250 ;  2  Cain.  Rep.  193 ;  2  BibVs  Rep.  583  ; 
13  Johns.  Rep.  325  ;  5  Day's  Rep.  439 ;  6  Shepl  419,  424 ; 
23  Wend.  260  ;  17  id.  193  ;  Georgia  Rep.  part  2,  p.  112.) 

J.  H.  Reynolds,  for  the  defendant  in  error.  The  rails  being 
made  into  fence,  on  the  premises  covered  by  the  deed,  were  as 
between  Mott  and  Palmer  a  part  of  the  realty,  and  would  have 
passed  by  the  deed  had  Mott  owned  them.  ( Goodrich  v.  Jones, 
2  Hill,  142 ;  2  Wooddeson's  Lee.  379  ;  2  Rents  Com.  346,  n.  ; 
Walker  v.  Sherman,  20  Wend.  639  ;  Middlebrook  v.  Corwin, 
15  id.  169.)  And  Mott  having  assumed  by  the  deed  to  convey 
them  av  real  estate,  is  estopped  from  denying  that  they  were  a 
part  of  the  realty  as  between  him  and  his  vendee.  (McCarty 
v.  Leggett,  3  Hill,  134 ;  Abbott  v.  Allen,  14  John.  248  ;  Green- 
ly v.  Wilcox,  2  id.  1  ;  Hamilton  v  .  Wilson,  4  id.  72  ;  Sinclair 
v.  Jackson,  8  Cowen,  553  ;  Jackson  v.  Bull,  1  John.  Cas.  90  ; 
Jackson  v.  Stevens,  16  John.  110  ;  Dezell  v.  Odell,  3  Hill,  215  ; 
2  Atk.  228,  383,  558.)  There  being  no  reservation  in  the  deed, 
of  the  fence  in  question,  every  thing  appurtenant  to  the  soil 
prima  facie  passed  by  the  deed  as  between  Mott  and  Palmer. 
It  was  as  between  them  treated  as  real  estate,  and  the  rails  or 
fence  in  question  would  have  passed  had  Mott  owned  them. 
Mott  covenanted  that  he  owned  the  premises  and  every  part 
thereof.  These  rails  made  into  fence  were  a  part  thereof,  as 
between  grantor  and  grantee,  and  the  covenant  of  seisin  ope- 
rated as  much  upon  them  as  upon  the  soil  itself.  (Austin  v. 
Sawyer,  9  Cowen,  39 ;  Holmes  v.  Tremper,  20  John.  30 ;  Mil- 
ler v.  Plumb,  6  Cowen,  665  ;  McClintock  v.  Graham,  3  Me- 


568  CASES  IN  THE  COURT  OF  APPEALS. 

Mott  v.  Palmer. 

Cord,  553  ;  Fair  is  v.  Walker,  1  Bailey,  540 ;  Isharn  v.  Mor- 
gan, 9  Conn.  R.  374 ;  2  KenCs  Com.  342.)  If  Mott  had  cov 
enanted  in  express  terms  that  he  owned  the  particular  fence  in 
question,  there  could  be  no  doubt  that  an  action  for  the  breach 
of  that  covenant  could  have  been  maintained  if  the  title  had 
failed.  By  the  deed  from  Mott  to  Palmer  the  fence  in  question 
was  as  much  embraced  in  it  and  as  much  a  part  of  the  prem- 
ises conveyed  as  if  it  had  been  conveyed  in  express  terms ;  for 
there  being  no  reservation  in  the  deed,  every  thing  appurtenant 
to  the  premises  was  covered  by  the  deed  as  between  vendor  and 
vendee.  (Platton  Cov.  306  ;  11  East,  012  ;  Holmes  v.  Trcm- 
per,  20  John.  30  ;  Isham  v.  Morgan,  9  Conn.  374  ;  Kittredgc 
v.  Woods,  3  N.  Hamp.  R.  503  ;  Parsons  v.  Camp,  11  Conn. 
525 ;  5  Grcenl  222  ;  15  Wend.  169  ;  21  Pick.  367.) 

The  defence  set  up  by  the  defendant  and  the  evidence  offer- 
ed to  sustain  it  was  in  its  effect  an  effort  to  vary  by  parol  the 
legal  import  of  the  deed  ;  to  restrict  its  terms  so  that  it  should 
riot  operate  upon  what  in  fact  and  in  judgment  of  law  was  a 
part  of  the  premises  described  in  the  conveyance.  The  cove- 
nant operated  upon  every  thing  which  would  have  passed  by 
the  deed  if  Mott  had  been  the  owner.  The  effort  therefore  to 
show  that  the  fence  was  mere  personal  estate,  and  that  in  con- 
sequence of  its  being  personal  estate  was  not  covered  by  the 
deed  or  embraced  in  the  covenants,  was  in  effect  contradicting 
its  terms,  and  limiting  and  restricting  its  legal  effect  by  parol. 
and  was  therefore  inadmissible.  (Austin  v.  Sawyer,  supra; 
Isham  \.  Morgan,  9  Conn.  374 ;  Suydam  v.  Jones,  10  Wend. 
180;  Stevens  \.  Cooper,  1  John.  CIi.  429;  Champion  v.  Storm 
and  White,  5  Cowcn,  509  ;  Jackson  v.  Croy,  12  John.  R.  427  ; 
Child  v.  Wells,  13  Pick.  121.) 

RUGGLKS.  J.  In  December,  1841,  Mott  conveyed  to  Palmer 
a  farm  of  land  in  Columbia  county,  by  a  deed  containing  the 
following  covenant : 

"  And  the  said  Philander  Mott  doth  hereby  covenant  and 
igree  that  at  the  delivery  hereof  he  is  the  lawful  owner  of  the 


ALBANY,  DECEMBER,  1848.  559 


Molt  v.  Palmer. 


premises  above  granted,  and  seized  of  a  good  and  indefeasible 
estate  of  inheritance  therein  clear  of  all  incumbrance." 

This  action  was  brought  by  Palmer,  the  grantee,  on  the  cov 
enant  in  the  deed,  to  recover  the  value  of  a  rail  fence  which 
stood  on  the  land  when  the  deed  was  executed,  but  which  did 
not  belong  to  Mott  the  grantor.  The  facts  were,  that  the  fence 
was  erected  on  Mott's  land  in  1840  by  one  Brown,  (who  owned 
the  adjoining  land,)  under  an  agreement  between  him  and  Mott, 
by  which  Brown  was  to  fence  in,  temporarily,  a  part  of  Mott's 
land  with  his  own,  and  to  cut  and  take  away  the  grass  grow- 
ing on  Mott's  land ;  with  leave  to  take  away  the  fence  when- 
ever he  liked.  After  Mott  conveyed  to  Palmer  the  land  on 
which  the  fence  stood,  Palmer  removed  the  fence  and  converted 
it  to  his  own  use.  Brown  thereupon  sued  him  before  a  justice 
for  the  fence  and  recovered,  Mott  being  a  witness  on  that  trial 
against  Palmer.  Although  the  evidence  to  prove  these  facts 
was  at  first  offered  by  Palmer  on  the  trial  of  this  cause  in  the 
court  below  and  rejected  by  the  court,  it  was  afterwards  given 
by  the  defendant  Mott. 

The  question  now  is  whether  in  this  action  brought  by  Palmer 
the  grantee  against  Mott  his  grantor,  on  the  covenant  of  owner- 
ship and  seisin  in  the  deed,  Palmer  is  entitled  to  recover  the 
value  of  the  fence.  A  grantor  who  executes  a  conveyance  of 
land  undertakes  to  convey  every  thing  described  in  his  deed ; 
and  by  a  covenant  of  seisin  he  assumes  to  be  the  owner  of  all 
he  undertakes  to  convey.  The  deed  in  question  purported  to 
"  grant  and  convey  all  that  certain  lot  or  farm  of  land  situate 
in  the  town  of  Chatham,  county  of  Columbia,  bounded  &e. 
with  the  appurtenances,"  &c.  The  word  land,  when  used  in 
a  deed,  includes  not  only  the  naked  earth,  but  every  thing 
within  it,  and  the  buildings,  trees,  fixtures  and  fences  upon  it> 
(Goodrich  v.  Jones.  2  Hill,  143;  Walker  \:  Sherman.  20 
Wend.  639,  640,  646 ;  Green  v.  Armstrong,  1  Denio,  554 ; 
Com.  Dig.  Grant,  E.  ;  Co.  Litt.  4  a  ;  2  Roll.  265.)  A  deed 
passes  all  the  incidents  to  the  land  as  well  as  the  land  itself, 
and  as  well  when  they  are  not  expressed  as  when  they  are. 
Fixtures  belonging  to  the  owner  of  the  land,  being  part  of  the 

VOL.  I.  72 


570  CASES  IN  THE  COURT  OF  APPEALS. 


Molt  v.  Palmer. 


land,  cannot  be  reserved  by  parol  when  the  land  is  conveyed ; 
the  deed  conveys  them  to  the  grantee  unless  the  reservation  be 
in  writing.  (Noble  v.  Bosworth,  19  Pick.  314.)  If  the  fence 
had  belonged  to  Mott,  it  would  have  passed  by  his  deed  ;  not 
by  force  of  the  word  appurtenances  contained  in  the  deed,  but 
without  that  word,  and  as  part  of  the  land.  Trees,  buildings, 
fixtures,  and  fences  on  a  farm,  are  corporeal  in  their  nature,  and 
the  subjects  of  seisin,  like  the  land  itself  of  which  they  are  re- 
garded in  the  law  as  a  part.  Fences  are  perishable  by  the 
effect  of  time,  and  so  are  trees  and  houses  ;  but  indestructibility 
is  not  one  of  the  essential  attributes  of  real  estate.  Fences  are 
not  only  indispensable  to  the  enjoyment  of  real  estate,  but  they 
are,  in  their  nature,  real  estate,  to  the  same  extent  that  houses 
and  other  structures  on  the  land  are  so.  A  rail,  before  it  is  used 
in  the  construction  of  a  fence,  is  personal  property,  and  so  is  a 
loose  timber  before  it  is  used  in  the  construction  of  a  house. 
When  either  is  applied  to  its  appropriate  use  in  building  a  fence 
or  a  house,  its  legal  nature  is  changed.  It  becomes  real  estate, 
and  is  governed  by  the  law  which  regulates  land,  descending  to 
the  heir  as  part  of  the  inheritance,  and  passing  by  a  deed  as 
part  of  the  freehold.  A  fence  may  be  easily  detached  from  the 
earth,  but  not  more  easily  than  the  stones  which  lie  on  its  sur- 
face, and  both  are  part  of  the  land,  and  therefore  it  is  that  a 
building  or  fence  belonging  to  the  owner  of  the  land  will  pass 
by  his  deed  of  the  land  without  being  expressed  or  designated 
as  part  of  the  thing  granted. 

But  the  earth  within  specified  boundary  lines  may  be  owned 
by  one  man,  and  the  buildings,  trees  and  fences  standing  on  it 
by  another.  A  man  may  have  an  inheritance  in  an  upper 
chamber,  although  the  title  to  the  lower  buildings  and  soil  be 
in  another.  (Shep.  Touch.  206;  1  List.  48,  b.)  And  it  is  a  cor- 
poreal inheritance.  (10  Vin.  202.)  Buildings  and  fixtures 
erected  by  a  tenant  for  the  purposes  of  trade  belong  to  him,  and 
are  removable  without  the  consent  of  his  landlord.  (Holmes 
v.  Trcmper,  20  Jo/ui.  30 ;  Miller  v.  Plumb,  6  Cowen,  665 ; 
Doty  v.  Gorham,  5  Pick.  489.)  HerldkendevH s  case.  (4  Co. 
R.  63,)  affords  an  instance  in  which  one  man  owned  the  land 


ALBANY,  DECEMBER,  1848.  57] 


Mott  ».  Palmer. 


and  another  the  growing  trees  upon  it.  In  Rogers  v.  Wood- 
bury,  (15  Pick.  156,)  Putnam,  J.,  in  speaking  of  a  house  which 
a  man  had  erected  on  land  which  did  not  belong  to  him,  said 
<;  it  might  or  it  might  not  be  parcel  of  the  realty.  If  the  owner 
of  the  land  owned  the  buildings,  it  would  be  so.  If  he  did  not, 
and  the  owner  of  the  building  had  no  interest  in  the  land,  the 
building  would  be  personal  property."  Smith  v.  Benson,  (1 
Hill,  176,)  was  the  case  of  a  dwelling  house  and  grocery  be- 
longing to  one  man,  although  standing  on  the  land  of  another; 
and  in  Russell  v.  Richards,  (1  Fairf.  431,)  the  owner  of  land 
on  which  another  man  had  erected  a  saw  mill  by  his  consent, 
executed  a  deed  for  the  land  and  the  mill,  but  it  was  held  that 
the  conveyance  passed  no  title  to  the  mill,  because  it  was  the 
property  of  him  who  built  it.  The  conclusion  derived  from 
these  cases  against  the  plaintiff's  right  of  recovery  on  the  cov- 
enant is,  that  the  defendant's  deed  purports  to  be  a  grant  of  real 
estate  only,  and  the  fence  in  question  being  personal  property 
was  not  a  part  of  the  premises  granted,  and  therefore  not  within 
the  scope  of  the  covenant  which  relates  to  the  realty  only. 

If  this  be  a  sound  conclusion,  a  grantor  could  not  be  made  lia- 
ble on  the  covenants  in  his  deed,  although  he  had  previously  and 
privately  sold,  with  a  view  to  removal,  all  the  houses,  buildings, 
mills,  fences,  and  growing  timber  on  the  land  conveyed.  In- 
deed, if  this  doctrine  prevails,  the  gravel,  clay,  stone  and  loam, 
might  also  be  converted  into  personal  property  by  such  a  sale, 
and  carried  off  the  land ;  without  violating  the  grantor's  covenant. 
Let  us  test  the  correctness  of  this  conclusion  in  a  few  words. 
It  is  true  the  fence  in  one  sense  was  not  a  part  of  the  thing 
granted.  It  did  not  pass  by  the  deed.  In  the  same  sense,  if 
some  stranger  had  been  the  owner  of  one  half  the  farm,  that 
half  would  not  have  been  part  of  the  thing  granted,  because  it 
would  not  have  passed  by  the  deed.  But  the  fence  was  within 
the  description  of  the  thing  granted  as  clearly  as  the  land  it- 
self; and  being  within  the  description,  it  was  a  part  of  that 
which  the  deed  purported  to  convey,  and  of  which  the  grantor 
covenanted  that  he  was  the  owner.  If  it  be  yet  doubted  wheth- 
er the  fence  (being  in  fact  the  personal  property  of  Brown)  was 


572  CASES  IN  THE  COURT  OF  APPEALS. 


Mott  v.  Palmer. 


within  the  description  of  what  the  grantor  professed  to  convey, 
that  doubt  can  be  solved  in  a  moment,  by  reflecting  that  it 
would  undeniably  have  passed  by  the  deed  if  the  grantor  had 
been  the  owner  of  it ;  although  it  could  not  have  so  passed  if 
it  had  not  been  within  the  description. 

It  all  comes  to  this  :  The  grantor  undertook  to  convey  it  as 
part  of  the  realty  by  a  deed  which  would  have  been  effectual 
for  that  purpose  if  he  had  been  the  owner  of  it,  as  by  the  deed 
he  professed  to  be,  but  was  not.  It  is  therefore  a  case  in  which 
the  covenant  of  seisin  affords  a  remedy ;  and  although  the 
amount  in  controversy  is  trifling,  the  right  is  clear  ;  and  it 
seems  to  be  perfectly  just  that  the  grantor  should  pay  for  the 
fence,  because  there  is  nothing  in  the  case  to  show  that  Palmer, 
when  he  accepted  the  deed,  was  informed  by  Mott  or  other- 
wise knew  that  it  belonged  to  Brown. 

The  judgment  of  the  supreme  court  must  therefore  be 
affirmed. 

BRONSON,  J.  The  fence  in  question  stood  on  the  land  which 
the  defendant  conveyed  to  the  plaintiff;  and,  as  between  ven- 
dor and  vendee,  was  a  part  of  the  thing  granted.  (Goodrich 
v.  Jones,  2  Hill,  142  ;  Thayer  \.  Wright,  4  Dcnio,  ISO  ;  Green 
v.  Armstrong,  1  id.  554.)  There  is  no  more  doubt  of  this,  than 
there  is  that  the  trees,  herbage  and  buildings  on  the  land,  or 
the  mines  and  quarries  in  it,  passed  by  the  deed. 

It  is  undoubtedly  true  that  the  soil  may  be  owned  by  one 
man,  and  the  fences  and  buildings  by  another ;  and  as  between 
such  owners,  those  structures  will  be  regarded  as  personal  prop- 
erty. But  in  their  nature,  fences  and  buildings,  like  every  thing 
else  attached  to  the  earth,  are  real  estate,  and  will  pass  with 
the  soil  to  the  heir  or  grantee.  It  is  truly  said  that  rails  are 
not  in  their  nature  icai  property.  But  a  fence,  though  con- 
structed of  rails,  is  in  its  nature  real  property.  It  is  just  as 
plainly  so  as  is  a  house.  Both  are  made  of  materials  which 
were  once  personal  property ;  but  they  become  real  when 
formed  into  a  structure  attached  to  the  soil.  The  word  land 
includes  not  only  the  soil,  but  every  thing  attached  to  it, 


ALBANY,  DECEMBER,  1848.  573 


Mott  v.  Palmer. 


whether  attached  by  the  course  of  nature,  as  trees,  herbage 
and  water,  or  by  the  hand  of  man,  as  buildings  and  fences. 
This  is  but  common  learning  ;  and  there  is  no  more  room  for 
question  that  a  grant  of  land,  eo  nomine,  will  carry  buildings 
and  fences,  than  there  is  that  it  will  carry  growing  trees  and 
herbage  upon,  or  mines  and  quarries  in  the  ground.  This  is 
probably  the  first  time  the  suggestion  was  ever  made,  that  the 
purchaser  of  a  farm  must  have  the  fences  mentioned  in  the 
deed,  either  for  the  purpose  of  acquiring  a  title  to  them,  or 
having  that  title  secured  by  the  covenants  in  the  conveyance. 

The  fact  that  buildings  and  fences  may  be  owned  by  a  differ- 
ent person  from  the  one  who  owns  the  soil,  has  no  tendency  to 
show  how  much  the  defendant  attempted  to  convey.  That 
must  be  settled  by  the  deed  ;  and  the  deed  just  as  plainly  goes 
to  the  structures  attached  to  the  land,  as  it  does  to  trees,  mines 
and  quarries. 

It  is  said  that  the  fence  was  not  included  in  the  grant,  be- 
cause the  defendant  did  not  own  it.  That  argument  proves  too 
much.  It  proves  that  nothing  was  granted,  if  the  defendant 
owned  nothing  which  he  professed  to  convey.  And  it  turns  the 
covenant  of  seizin  into  nonsense  ;  for  it  will  have  no  operation, 
except  where  it  is  of  no  use,  to  wit,  where  the  grantor  owned  the 
thing  granted. 

It  is  true  that  ejectment  cannot  be  brought  for  a  fence  after 
it  has  been  severed  from  the  freehold,  and  become  personal 
property.  And  it  is  no  less  true  that  ejectment  cannot  be 
brought  for  trees,  buildings  or  ores  under  the  like  circumstan- 
ces. But  the  argument  does  not.  prove  but  that  all  these  things 
are  real  property  before  the  severance  takes  place. 

The  covenant  of  seizin,  when  in  the  usual  form,  goes  to  the 
<.itle  ;  and  is  broken  the  moment  it  is  made,  if  the  vendor  had 
not  the  lawful  title  to  the  property  granted,  and  to  every  part 
of  it.  In  this  case  the  defendant  covenanted,  that  he  was  "  the 
lawful  owner  of  the  premises  above  granted,  and  seized  of  a 
good  and  indefeasible  estate  of  inheritance  therein."  The  cov- 
enant extended  to  the  whole  of  "  the  premises;"  and  included 
the  fences,  as  well  as  the  trees,  buildings,  mines,  quarries,  and 


574  CASES  IN  THE  COURT  OF  APPEALS. 


Mott  v.  Palmer. 


other  things  which  were  granted  by  the  deed.  As  to  the  fence, 
and  the  rails  of  which  it  was  composed,  the  defendant  had  no 
title  ;  he  was  not  the  owner ;  the  property  belonged  to  Brown. 
The  covenant  was  as  plainly  broken,  as  it  would  have  been  had 
Brown  owned  the  house  and  barn,  or  a  coal  mine  or  ore  bed  in 
the  land.  Notwithstanding  the  zeal  with  which  the  contrary 
doctrine  was  urged,  no  authority  was  produced  in  support  of  it. 
Cases  were  cited  to  show,  that  a  mere  lien  or  incumbrance,  as 
a  judgment  or  mortgage  ;  or  an  easement,  as  a  way  over  the 
land  ;  none  of  which  divest  the  title  ;  do  not  constitute  a  breach 
of  the  covenant  of  seizin.  (Sedgwick  v.  HoHcnback,  7  John. 
376  ;  Whitbeck  v.  Cook,  15  id.  483.)  Such  cases  are  very  far 
from  proving,  that  the  covenant  is  not  broken  where  a  part  of 
the  thing  granted  was  not  owned  by  the  covenantor,  but  was 
owned  by  another. 

It  was  a  matter  of  no  importance  how  Brown  acquired  title 
to  the  rails.  It  was  enough  that  lie  owned  them. 

That  parol  evidence  was  inadmissible  to  control  the  legal 
effect  and  operation  of  the  deed,  is  too  plain  a  proposition  to  be 
disputed.  If  the  plaintiff  had  been  told  at  the  time  that  Brown 
owned  the  rails ;  and  more,  if  the  rails  had  been  expressly  ex- 
cepted  by  parol  from  the  operation  of  the  grant  and  covenant, 
it  would  have  been  no  answer  to  the  action.  (Townsendv. 
Weld,  8  Mass.  R.  146;  Noble  \.  Boswort/i,  19  Pick.  314; 
Suydam  v.  Jones,  10  Wend.  180  ;  Champion  v.  White,  5 
Cowcn,  509  ;  Jackson  v.  Russell,  12  John.  427.)  A  deed  can- 
not be  contradicted  in  its  legal  effect,  any  more  than  it  can  in 
its  terms. 

I  am  of  opinion  that  the  judgment  is  right,  and  should  be 
affirmed. 

JOHNSON,  J.  There  is  no  reservation  of  the  fence  or  rails  in 
question  in  the  deed.  It  purports  to  convey  the  entire  premises  ; 
every  thing  that  usually  passes  with  the  land  and  as  part  of  it 
as  well  as  the  land  itself.  The  covenant  alleged  to  have  been 
broken  is  as  broad  as  the  grant,  and  by  it  the  grantor  covenant- 
ed with  his  grantee  that  ho  was  ki\\  fully  seized  of  an  estate  of 


ALBANY,  DECEMBER,  184b.  575 


Mott  v.  Palmer. 


inheritance  in  and  had  good  right  to  convey  every  thing  which 
the  grant  purported  upon  its  face  to  operate  upon.  Prima 
facie  the  rails  which  were  then  lying  in  a  fence  upon  the  land 
were  part  of  it  and  passed  by  the  deed  as  land,  with  the  seizin 
in  fee  in  the  vendor  guarantied  by  the  covenant. 

But  it  is  said  that  this  fence  in  fact  was  not  part  of  the  free- 
hold ;  that  having  been  built  by  a  tenant  under  an  agreement 
that  it  might  be  removed,  it  was  mere  personal  property  and 
did  not  pass  by  the  deed  :  and  the  argument  assumes  that  if  it 
was  not  a  part  of  the  realty  and  would  not  therefore  pass  by 
the  deed,  the  covenant  of  seizin  did  not  extend  to  it.  But  it  is 
no  answer  to  say  that  because  the  grantor  had  no  title,  and 
could  grant  none,  to  what  upon  the  face  of  his  deed  he  under- 
took to  convey,  the  covenant  of  seizin  does  not  therefore  apply 
to  it  and  is  not  broken.  The  same  answer  might  be  given 
with  equal  force  in  regard  to  the  title  to  the  soil  itself.  It  is 
not  so  much  a  question  as  to  whether  the  title  to  the  rails 
did  actually  pass  under  the  deed,  as  it  is  conceded  that  they 
did  not :  and  if  they  had  there  would  clearly  have  been  no 
breach.  But  it  is  more  properly  a  question  what  upon  the 
face  of  the  instrument  and  by  its  terms  the  grantor  undertook 
to  convey  and  to  covenant  that  he  was  seized  of,  The  under- 
taking is  one  thing  and  its  effect  upon  the  subject  matter  of  the 
undertaking  aud  the  rights  of  the  parties  under  it  quite  another. 
And  it  is  precisely  because  the  grantor  undertook  to  convey  and 
(o  be  the  owner  of  that  to  which  he  had  no  right,  and  could 
convey  none,  that  the  action  lies  if  it  can  be  sustained  at  all. 
If  the  covenant  of  seizin  shall  be  found  to  apply  to  things  of 
this  nature  in  ordinary  cases  between  grantor  and  grantee,  it 
seems  to  me  quite  clear  that  the  defendant  in  error  must  recover. 

It  was  strenuously  urged  by  the  counsel  for  the  plaintiff  in 
error  that  the  covenant  of  seizin  does  not  apply  to  any  thing  in 
the  nature  of  fixtures  or  appurtenances  which  may  or  may  not 
belong  to  the  freehold,  according  to  extraneous  facts  or  circum- 
stances ;  that  by  it  the  grantor  only  covenanted  that  he  wras 
seized  of  a  freehold  estate  in  the  premises,  and  that  no  other 
person  had  such  an  estate  therein  ;  ana  that  the  covenant  had 


576  CASES  I1N  THE  COURT  OF  APPEALS. 


Mott  v.  Palmer. 


no  application  to  any  estate  or  interest  in  the  premises  less  than 
a  freehold.  Before  we  adopt  this  doctrine  as  applicable  to  such 
things  as  usually  pass  by  a  conveyance  as  part  of  the  realty,  we 
must  be  careful  to  see  the  consequences  to  which  it  might  lead. 
It  has  been  well  held  that  a  highway  regularly  laid  out  run- 
ning across  land  at  the  time  of  the  grant  was  no  breach  of  the 
covenant  of  seizin,  because  notwithstanding  the  easement  the 
grantor  was  well  seized  of  the  title  to  the  land  and  had  good 
right  to  convey.  (  Whitbeck  v.  Cook,  15  John.  483.)  But  that 
is  not  this  case.  The  want  of  seizin,  of  a  right  to  convey, 
(which  did  not  exist  in  that  case,)  is  the  very  cause  here  alleged. 
It  must  be  quite  obvious,  I  think,  that  if  a  party  under  the  cir- 
cumstances of  this  case  has  no  remedy  under  his  covenant  of 
seizin  he  must  remain  entirely  remediless  as  regards  his  deed, 
because  no  other  covenant  is  at  all  applicable.  Under  the  cov- 
enants of  warranty  and  for  quiet  enjoyment  there  must  first  be 
an  eviction ;  and  I  think  no  one  will  seriously  contend  that  the 
covenant  against  incumbrances  has  an  application  in  any  sense. 
Even  conceding — which  I  do  not — that  the  existence  of  a  pub- 
lic highway  or  other  easement  is  an  incumbrance,  it  would  not 
affect  this  case.  Were  the  rule  contended  for  the  true  one,  it 
might  and  doubtless  often  would  happen  that  a  party  holding 
premises  under  a  deed  with  full  covenants  would  have  his 
premises  stripped  of  buildings,  fences,  and  every  thing  valuable 
belonging  to  the  estate,  and  yet  have  no  remedy  against  his 
grantor  upon  any  covenant  in  the  conveyance. 

No  one,  I  believe,  has  ever  yet  thought  it  necessary  to  require 
the  grantor  to  insert  a  special  covenant  in  his  conveyance  that 
lie  was  seized  and  had  good  right  to  convey  the  buildings, 
fences,  standing  trees  and  growing  grass  upon  the  premises 
covered  by  the  grant,  and  for  the  obvious  reason  that  the  cove- 
nant of  seizin  has  hitherto  been  regarded  as  a  sufficient  protec- 
tion against  a  want  of  title  in  the  grantor,  to  any  of  these  essen- 
tial and  often  by  far  the  most  valuable  portions  of  the  premises 
purchased.  The  novelty  of  such  a  special  covenant  in  a  deed 
at  this  day  would  be  a  strong  argument  against  its  necessity. 
These  personal  covenants  in  our  conveyances  of  real  estate 


ALBANY,  DECEMBER,  1848  577 

Mott  v.  Palmer. 

have  been  framed  with  great  care  and  proved  by  long  expe- 
rience ;  and  it  can  hardly  be  conceived  that  they  have  hitherto 
failed  to  protect  parties  or  to  give  them  a  sufficient  remedy  in 
case  of  the  loss  of  such  valuable  interests. 

The  ordinary  covenant  that  the  grantor  is  seized  in  his  own 
right  and  has  power  to  convey  the  premises  granted  must,  it 
seems  to  me,  be  construed  to  extend  to  every  thing  attached  to 
the  soil  that  usually  passes  by  deed  as  real  estate,  as  fully  as 
though  the  specific  thing  were  named,  or  a  covenant  framed  for 
it  by  itself;  and  such,  I  think,  has  been  the  general  under- 
standing of  courts  and  conveyancers. 

WRIGHT,  J.  and  GRAY,  J.  were  also  for  affirming  the 
judgment. 

GARDINER,  J.  dissenting.  The  argument  by  which  the  rails 
in  question  are  converted  into  real  estate,  in  order  to  bring 
them  within  the  purview  of  the  grant  of  the  defendant,  is  sub- 
stantially as  follows.  Rails  made  into  fence  and  attached  to 
the  freehold  become  part  of  the  land.  The  rails  in  question 
were  made  into  fence  and  attached  to  the  land  conveyed  to 
Palmer.  Therefore  as  between  vendor  and  vendee,  Brown's 
rails  were  a  part  of  Mott's  land  :  and  it  being  admitted  that 
Mott  the  defendant  neither  owned  the  rails  nor  "  was  seized  of 
an  indefeasible  estate  of  inheritance  therein,"  at  the  delivery  of 
the  deed,  he  is  liable  for  breach  of  his  covenants.  This  is  plau- 
sible. The  infirmity  of  the  syllogism  consists  in  what  logicians 
call  the  petitio  principii.  It  assumes  the  very  point  in  issue, 
namely,  that  the  rails  in  question  were  attached  to  the  land  so 
as  to  become  parcel  of  the  premises.  This  proposition,  which 
is  indispensable  to  the  maintenance  of  the  action,  is  not  only 
unsupported  by  proof,  but  was  conclusively  disproved  by  the 
evidence.  Brown,  the  tenant,  swore  "  that  he  cut  the  rails 
upon  his  own  lands,  and  put  them  in  fence  upon  Mott's  land 
for  the  purpose  of  cutting  a  piece  of  grass  upon  the  premises, 
under  an  agreement  with  Mott  that  if  he  would  build  the  fence 
there  he  might  move  it  off  whenever  he  pleased." 

VOL.  I.  73 


578  CASES  IN  THE  COURT  OF  APPEALS. 


Molt  v.  Palmer. 


The  question  is,  were  these  rails,  under  the  circumstances, 
attached  to  the  freehold  ?  Is  there  not  something  of  an  absurdity 
in  asserting  that  the  property  of  one  man  placed  upon  the  land 
of  another  with  the  unlimited  right  of  removal  becomes  thereby 
a  part  of  the  inheritance  ?  The  assumption,  it  is  believed,  has 
no  foundation  in  principle  or  authority.  Rails  upon  a  fence  are 
constructive  fixtures.  (3  Kents  Com.  347,  w.)  They  are  in 
their  own  nature  personal  property,  and  become  parcel  of  the 
realty,  as  the  term  fixture  imports,  in  virtue  of  their  annexation 
to  the  land.  (Id.  345,  «.)  The  annexation  which  will  con- 
vert personal  into  real  estate,  is  not  affected  by  placing  the 
chattel  upon  or  even  by  affixing  it  to  the  land  :  it  must  be  fixed 
to  the  freehold  perpetui  usus  causa.  (Id.  347  and  note;  Walker 
v.  Sherman,  20  Wend.  647,  655 ;  3  Dane's  Abr.  156 ;  4  Adol. 
$•  Ellis,  884.)  Hence,  if  the  annexation  is  made  by  virtue  of 
a  contract  with  the  owner  of  the  land  for  the  purposes  of  trade, 
(3  Kent,  345  ;  2  R.  S.  83,  §§  6,  7, 8,)  or  of  agriculture,  (  Whiting 
v.  Brastow,  4  Pick.  310,)  the  chattel  does  not  become  a  part 
of  the  freehold,  but  remains  personal  property.  In  this  case,  the 
fence  was  built  for  the  purpose  of  cropping  a  part  of  the  land 
under  a  contract  with  the  owner  which  secured  to  the  tenant 
the  right  to  remove  it  at  pleasure.  The  rails  of  which  it  was 
composed  were  never  attached  to  the  freehold,  and  were  conse- 
quently personal  property  at  the  time  of  the  conveyance  to  the 
plaintiff.  And  the  covenant  of  seizin  could  have  no  more  ap- 
plication to  them,  than  to  the  vehicle  by  which  they  were  trans- 
ported to  the  premises. 

Again,  it  was  urged  that  the  grantor  was  estopped  from  de- 
nying that  the  fence  which  was  upon  the  premises  in  question 
and  apparently  attached  thereto,  was  parcel  of  the  land  con 
veyed.  This  was  the  view  taken  by  the  judge  at  the  trial,  who 
vuled  accordingly.  If  the  defendant  was  estopped,  it  must  be 
upon  the  ground  of  his  grant  or  his  covenant,  or  both.  But 
the  grant  is  of  land,  and  the  defendant  covenants  that  he  owns 
the  land  described,  and  is  seized  of  an  estate  of  inheritance 
therein.  He  declares  by  his  covenant,  that  all  the  land,  in 
other  words  all  that  is  land  within  the  bounds  given  in  the 


ALBANY,  DECEMBER,  1848.  579 


Mott  v.  Palmer. 


deed,  he  owns  and  has  in  it  an  estate  of  inheritance.  It  is  a 
palpable  perversion  of  such  a  contract  to  turn  it  into  a  war- 
ranty that  every  thing  upon  the  land  (which  would  pass  with 
it  if  attached)  is  in  fact  a  part  of  the  freehold.  No  authority 
sanctions  such  a  principle.  We  have  been  referred  to  cases  in 
which  it  has  been  held  that  crops  growing  pass  to  the  vendee 
as  incident  to  the  land,  and  that  the  vendor  is  not  permitted  to 
contradict  the  effect  of  his  deed  by  setting  up  a  parol  exception 
at  the  time  of  the  conveyance.  But  in  all  these  cases,  the 
property  sought  to  be  exempted  from  the  operation  of  the  grant 
was  the  property  of  the  vendor  attached  to  or  appurtenant  to 
the  land.  Crops  will  thus  pass  ;  so  also  will  a  right  of  way ; 
but  if  either  be  severed  from  the  land  prior  to  its  conveyance,  by 
sale  or  release,  the  vendor  is  not  estopped  from  showing  the 
fact,  nor  is  he  liable  upon  his  covenant  of  seizin.  He  is  owner 
of  the  land  and  seized  thereof  notwithstanding  the  severance. 
The  ownership  of  the  property  determines  its  character,  whether 
it  is  part  of  the  freehold,  or  an  appurtenance,  or  a  mere  chattel. 
(4  Kent,  468.) 

It  has  been  held  in  effect  that  a  grant  of  liberty  to  dig 
turf,  or  of  the  herbage,  (Com.  Dig.  tit.  Grant,}  or  of  an  ease- 
ment, as  the  right  of  way,  (2  R.  S.  90,)  or  of  particular  trees, 
(4  Coke,  63,)  although  made  prior  to  the  sale  of  the  land,  is 
not  a  breach  of  the  covenant  of  seizin.  The  reason  is  assigned 
by  Coke — "  for  these  passed  to  the  first  grantee  but  a  particular 
right."  In  these  cases  the  turf,  herbage,  trees,  and  road  (if 
opened)  would  apparently  be  annexed  to  the  land,  or  as  Coke 
expresses  it  in  reference  to  trees,  in  property  they  are  divided 
from  the  land  although  in  fact  annexed.  (4  Coke,  63.)  The 
same  is  true  a  fortiori  of  a  constructive  fixture.  (Ropp  v.  Ba- 
ker, 4  Pick.  243.) 

But  the  plaintiff  in  his  declaration  avers  that  the  rails  were 
attached  to  the  freehold  and  premises  described  in  the  indenture, 
and  were  part  and  parcel  thereof."  This  was  a  question  of 
fact,  the  affirmative  of  which  the  plaintiff  was  bound  to  establish. 
Until  this  was  done,  the  fence  was  not  within  the  grant,  and  of 
course  the  deed  could  not  be  relied  upon  as  an  estoppel.  It  was  in 


580  CASES  IN  THE  COURT  OF  APPEALS. 


Mott  v.  Palmer. 


fact  a  question  of  parcel  or  no  parcel,  upon  Wiiich  both  parties 
were  at  liberty  from  the  necessity  of  the  case  to  give  evidence, 
in  order  to  identify  the  subject  of  the  conveyance. 

And  finally,  no  precedent  from  the  earliest  period  can  be 
found  of  an  action  of  this  character.  The  books  are  full  of 
controversies  between  vendor  and  vendee  as  to  the  effect  of  a 
grant  upon  property  claimed  as  fixtures.  But  this  is  the  first 
attempt  to  extend  the  covenant  of  seizin  to  personal  property, 
upon  the  ground  that  the  vendee  probably  supposed  that  it 
was  part  of  the  freehold.  There  are  substantial  reasons  for 
this  silence.  The  covenant  of  ownership  and  of  seizin  are  bro- 
ken, if  at  all,  upon  the  delivery  of  the  deed.  If  at  that  time 
the  supposed  fixture  is  really  such,  it  passes  by  the  grant ;  if  it 
is  not  a  fixture,  it  remains  a  mere  chattel,  and  cannot  be  the 
subject  of  covenants  which  are  restricted  to  the  land  only.  In 
neither  case,  consequently,  can  there  be  a  breach  of  the 
covenants.  Hence  the  declaration  in  this  cause  is  a  felo  de 
se,  and  must  be  so  in  every  case  of  a  similar  character.  For 
example,  the  plaintiff  avers,  1st.  That  the  rails  were  attached 
to  the  freehold,  and  are  parcel  of  the  premises.  This  averment 
was  necessary  in  order  to  bring  the  subject  within  the  grant. 
And  2d.  by  way  of  breach,  "  that  they  were  not  at  the  time  of 
the  conveyance  the  property  of  the  defendant."  The  two 
propositions  are  utterly  repugnant.  For  if  the  rails  were  owned 
by  a  person  having  no  interest  in  the  land,  they  were  for  that 
reason  personal  property,  and  therefore  could  not  be  a  part  of  the 
freehold.  If  on  the  contrary  they  were  parcel  of  the  land,  they 
could  not  be  the  property  of  a  person  having  no  interest  therein, 
and  of  course  would  pass  by  the  grant.  In  Rogers  v.  Wood- 
bury^  (15  Mass.  158,)  the  action  was  trover  for  a  fish  house  ;  and 
it  was  held  by  the  court,  (:  if  the  owner  of  the  land  did  not  own 
the  building,  and  if  the  owner  of  the  building  had  no  interest 
in  the  land,  the  building  was  personal  property."  In  the  case 
before  us,  the  owner  of  the  land  did  not  own  (he  fence,  and  the 
owner  of  the  fence  had  no  interest  in  the  land.  (Smith  v. 
Benson,  1  Hill,  176 ;  4  Coke,  63  ;  3  McCord,  553  ;  8  Mass.  411 ; 
1  Fairf.  R.  429.) 


ALBANY,  DECEMBER,  1848.  53 1 

Trustees  of  Hamilton  College  v.  Stewart. 

I  am  of  opinion  that  the  charge  of  the  judge  was  erroneous 
and  that  there  should  be  a  new  trial. 

JEWETT,  C.  J.  and  JONES,  J.  also  dissented,  and  concurred 
in  the  opinion  of  GARDINER,  J. 

Judgment  affirmed. 


THE  TRUSTEES  OF  HAMILTON  COLLEGE,  appellants,  vs.  AL- 

VAN  STEWART,  respondent.  112 

112 
112 

The  endowment  of  a  literary  institution  is  not  a  sufficient  consideration  to  uphold  a     167 
subscription  to  a  fund  designed  for  that  object. 

And  although  there  is  annexed  to  the  subscription  a  condition  that  the  subscribers 
are  not  to  be  bound  unless  a  given  amount  shall  be  raised,  no  request  can  be  im- 
plied therefrom  against  the  subscribers  that  the  institution  shall  perform  the  ser- 
vices and  incur  the  expenses  necessary  to  fill  up  the  subscription. 

Accordingly,  where  the  defendant  subscribed  $800  to  a  fund  for  the  payment  of  the- 
salaries  of  the  officers  of  Hamilton  College,  and  a  condition  was  annexed  that  the 
subscribers  were  not  to  be  bound  unless  the  aggregate  amount  of  subscriptions  and 
contributions  should  be  $50,000 ;  held,  that  there  was  no  consideration  for  the  un- 
dertaking and  that  no  action  would  lie  upon  it,  although  there  was  evidence 
tending  to  show  that  the  whole  amount  had  been  subscribed  or  contributed 
according  to  the  terms  of  the  condition. 

THIS  case  was  before  the  late  court  of  errors,  and  is  reported 
in  2  Dcnio,  403.  After  the  decision  of  that  court  as  there  re- 
ported, the  plaintiffs  again  brought  the  cause  to  trial  at  the 
Oneida  circuit,  before  GRIDLEY,  Cir.  Judge,  in  September,  1846, 
and  by  consent  the  facts  were  read  to  the  jury  from  the  error 
book  upon  which  the  cause  had  been  argued  in  the  court  of 
errors.  There  was  some  additional  testimony  not  material  to 
the  question  on  which  the  case  was  decided  in  this  court.  The 
circuit  judge  nonsuited  the  plaintiffs,  and  his  decision  was 
affirmed  by  the  supreme  court.  The  plaintiffs  brought  error  to 
this  court. 


581 

e!2 
h!2 

12 
e!2 

44 


582  CASES  IN  THE  COURT  OF  APPEALS. 

Trustees  of  Hamilton  College  v.  Stewart. 

C.  P.  Kirkland,  for  the  plaintiffs  in  error. 
Luther  R.  Marsh,  for  the  defendant  in  error. 

GARDINER,  J.,  delivered  the  opinion  of  the  court.  The 
conclusive  objection  to  the  maintenance  of  this  action  is  the 
want  of  consideration  for  the  undertaking  of  the  defendant. 
This  is  not  a  case  of  mutual  promises  where  the  underta- 
king of  one  party  is  the  consideration  for  the  promise  of 
the  other.  (Livingston  v.  Rogers,  1  Caines1  Rep.  534 ; 
Chit.  PL  296.)  This  was  so  adjudged  by  the  supreme  court 
when  the  case  was  before  them  upon  demurrer  to  the  declara- 
tion. As  I  read  the  agreement,  there  is  no  engagement  what- 
ever upon  the  part  of  the  plaintiffs,  or  any  other  person,  to  do  or 
forbear  to  do  any  thing  as  a  consideration  for  the  promise  of  the 
defendant.  The  clauses  in  the  instrument  to  which  we  are  re- 
ferred by  the  counsel  for  the  plaintiffs,  are  mere  conditions  lim- 
iting the  liability  of  the  defendant,  or  designating  the  purpose 
to  which  his  money,  when  paid,  is  to  be  applied.  The  subscri- 
bers say  that  they  will  not  pay  any  thing  unless  the  sum  of 
$50,000,  including  their  subscription,  shall  be  invested,  and  the 
interest  shall  be  applied  to  the  payment  of  the  salaries  of  the 
officers.  But  the  corporation  do  not  undertake  that  that  sum 
shall  be  subscribed,  or  that  any  other  person  will  endeavor  to 
procure  subscriptions,  or  that  they  will  make  the  investment  or 
appropriate  the  income  of  the  fund  to  the  purpose  designated. 
The  corporation  have  not  executed  the  agreement,  and  there  is 
no  evidence  that  they  knew  of  its  existence  until  after  the  sub- 
scription of  the  defendant.  The  first  count  of  the  declaration, 
which  is  founded  upon  mutual  promises,  is  not  therefore  sus- 
tained by  the  agreement. 

The  second  count,  upon  which  the  chief  reliance  is  placed, 
seqms  to  have  been  framed  with  a  view  to  the  suggestions  of 
C.  J.  Nelson  contained  in  his  opinion  attached  to  the  case. 
This  count  proceeds  upon  the  supposition  that  the  agreement 
furnished  evidence  of  a  request  to  the  plaintiffs  by  the  defendant 
to  perform  certain  services,  in  consideration  of  which  he  prom- 


ALBANY,  DECEMBER,  1848.  5Q3 

Trustees  of  Hamilton  College  v.  Stewart. 

ised  to  pay  them  the  sum  of  $800.  If  this  is  the  true  construc- 
tion of  the  writing,  the  right  of  the  plaintiffs  to  the  subscription 
money  is  unquestionable.  The  cases  referred  to  by  the  chief 
justice,  and  others  cited  upon  the  argument,  are  quite  conclusive 
to  show  that  the  value  of  the  services,  or  the  amount  of  the  con- 
sideration, is  of  no  importance  where  a  stipulated  sum  is  agreed 
to  be  paid  for  the  performance  of  a  specific  service.  (Sturlyn 
v.  Albany,  Cro.  Eliz.  67 ;  Id.  469 ;  1  Sel  32 ;  Saund.  PL  $- 
Ev.  147.)  In  looking  at  the  contract,  however,  we  meet  with 
the  same  difficulty,  in  another  form,  to  which  I  have  alluded  in 
reference  to  the  first  count  of  the  declaration.  There  is  no  re- 
quest by  the  subscribers  that  the  plaintiffs  shall  do  any  thing. 
They  agree  to  pay  the  trustees  of  Hamilton  College  the  sums 
by  them  severally  subscribed,  and  then  add,  "  that  we  shall  not 
be  holden  to  pay  the  sum  subscribed  by  us,  unless  the  aggregate 
of  our  subscriptions  and  of  contributions  to  this  object  shall,  by 
the  1st  of  July,  1834,  amount  to  $50,000,"  &c.  The  trustees 
are  made,  by  the  subscription,  the  mere  depositories  of  the 
money,  and  nothing  more.  If  any  other  person  had  been  de- 
signated, the  agreement  would  have  been  as  effectual  for  all  the 
purposes  contemplated,  as  in  its  present  form.  There  certainly 
is  no  express  request  to  the  plaintiffs,  or  the  trustees  as  their 
representatives,  to  procure  subscriptions  or  contributions.  Nor 
can  a  request  be  implied  from  the  agreement.  The  endowment 
of  the  college  was,  in  legal  contemplation,  no  benefit  to  the  sub- 
scribers. The  public  advantage  arising  from  the  diffusion  of 
knowledge  and  the  advancement  of  science,  however  important 
in  themselves,  have  not  been  held  a  sufficient  consideration 
alone  to  uphold  an  agreement  of  this  character.  (2  Pick.  580.) 
We  cannot  therefore  imply  a  request  from  the  beneficial  nature 
of  the  services  to  the  subscribers.  Nor  is  it  to  be  inferred  from 
the  object  to  be  obtained  by  the  subscription.  The  purpose,  as 
stated  by  the  plaintiffs  in  their  declaration,  "  was  to  endow  the  in- 
stitution, by  providing  a  fund  for  the  payment  of  its  officers."  In 
effect,  it  was  to  add  $50,000  to  the  permanent  funds  of  the  college, 
without  abstracting  any  thing  from  those  already  accumulated, 
How  then  are  we  authorized  to  imply  a  request  by  the  subscii 


584     CASES  IN  THE  COURT  OF  APPEALS. 


Trustees  of  Hamilton  College  v.  Stewart. 


bers,  that  the  plaintiffs  should,  as  they  allege,  "  at  great  labor 
and  expense,"  procure  these  subscriptions  ?  Every  dollar  thus 
expended  required  an  equivalent  sum  to  be  raised,  in  order  to  put 
the  institution  upon  the  footing  contemplated  by  the  subscribers. 

In  truth,  when  carefully  examined,  the  agreement  of  the  de- 
fendant amounts  to  a  promise  to  give  $800  on  certain  condi- 
tions. When  these  conditions  are  fulfilled,  no  matter  by  whom, 
or  at  whose  procurement,  the  donor,  according  to  the  letter  of 
his  promise,  is  to  pay.  It  cannot  be  doubted  that  if  an  indi- 
vidual or  an  association  had,  subsequent  to  the  subscription  of 
the  defendant  and  prior  to  July,  1834,  without  the  request  or 
knowledge  of  the  plaintiffs,  invested  $50,000  for  the  purpose 
mentioned  in  this  contract,  and  obtained  the  certificate  of  Mr. 
Hunt,  the  letter  and  spirit  of  the  conditions  precedent  upon 
which  the  gift  depended  would  have  been  complied  with.  If 
the  plaintiffs  subsequently  accepted  the  money  or  securities, 
they  of  course  would  take  them  subject  to  the  trust  annexed  by 
the  donors  to  the  gift.  If  they  declined,  the  money  would  re- 
vert, and  the  depositary,  whoever  he  might  be,  would  hold  it  ir. 
trust  for  the  use  of  the  subscribers. 

These  remarks,  if  well  founded,  dispose  of  the  case.  The 
principles  involved  in  the  case  are,  however,  of  general  interest, 
and  I  will  therefore  advert  to  some  of  the  principal  authorities 
that  have  been  pressed  upon  our  consideration.  In  McCauley 
v.  Billinger,  (20  John.  R.  89,)  a  committee  was  appointed  at  a 
church  meeting  to  receive  subscriptions,  and  to  contract  for  the 
repairs  of  the  church  in  the  manner  set  forth  in  the  subscrip- 
tion. The  subscription  is  not  given,  but  the  court  held  "  that 
the  consideration  for  the  defendant's  promise,  was  the  repairing 
of  the  church.  That  the  defendant  by  signing  the  paper,  sanc- 
tioned the  acts  of  the  meeting"  According  to  the  view  of  the 
court,  it  was  in  effect  a  written  request  to  the  committee  to 
make  repairs,  in  consideration  of  which  the  defendant  under- 
took to  pay.  This  is  the  strongest  case  for  the  plaintiffs  in  our 
reports.  In  the  case  of  the  Amhcrst  Academy  v.  Coivles,  (G 
Pick.  R.  427  to  438.)  the  action  was  upon  a  note  payable  to 
the  plaintiffs,  given  for  a  subscription  to  a  fund  for  the  use  of  a 


ALBANY,  DECEMBER,  1848.  585 

Trustees  or  Hamilton  College  v.  Stewart. 

college  which,  at  the  time  of  the  subscription,  had  not  been 
incorporated.  The  plaintiffs  were  to  have  the  property  of  the 
fund,  and  the  management  thereof  according  to  the  provisions 
of  the  constitution  subscribed  by  the  defendant,  and  when  the 
institution  was  incorporated,  it  was  provided  that  the  plain  tiff 
should  transfer  to  the  college  the  whole  fund  and  the  evidences 
thereof.  These  duties  were  performed,  and  subsequently  the 
defendant  gave  his  note,  and  thereby  acknowledged  that  he  had 
received  value,  and  that  it  was  given  in  pursuance  of  his  previ- 
ous covenants.  It  was  a  manifest  instance  of  services  performed 
at  the  request  and  by  the  direction  of  the  defendant,  for  which 
an  action  might  have  been  sustained  upon  the  subscription 
itself,  independent  of  the  note.  It  resembles  in  this  particular 
the  case  of  R.  Society  of  Whitestown  v.  Stone,  (7  John.  R.  113,) 
which  was  referred  to  by  the  court  in  their  decision.  Limerick 
Academy  v.  Davis,  (11  Mass.  R.  114,)  was  an  action  upon  a 
subscription  very  similar  to  the  one  before  us.  Judgment  was 
given  for  the  defendant.  The  court  held  "  that  it  was  a  prom- 
ise to  give,  connected  with  a  similar  promise  of  others  to  give 
for  the  same  purpose  ;  at  most  it  was  a  donation  to  come  into 
operation  at  the  will  of  each  subscriber."  In  Bridgewater 
Academy  v.  Gilbert,  (2  Pick.  579,)  the  subscription  upon  which 
the  action  was  brought  was  as  follows:  "  We  the  subscribers, 
being  desirous  that  the  academy  edifice  should  be  rebuilt  imme- 
diately, do  hereby  promise  to  pay  to  the  committee  which  may 
be  chosen  by  the  trustees  of  the  B.  Academy,  the  sum  set 
opposite  our  names  for  the  above  purpose."  The  edifice  was 
rebuilt.  And  the  court  held,  "that  the  subscription  paper 
would  not  sustain  the  action.  That  providing  materials  upon 
the  faith  of  the  subscription,  was  not  sufficient  to  show  that 
the  expenses  were  incurred  at  the  implied  request  of  the  de- 
fendant." If  a  request  could  not  be  inferred  from  that  paper, 
it  is  impossible  to  say  that  it  can  be  implied  from  the  one 
under  consideration.  Indeed,  all  the  authorities,  it  is  believed, 
will  be  found  consistent  with  the  result  to  which  we  have 
been  led  by  the  terms  of  the  agreement. 

If,  with  C.  J.  Nelson,  we  find  that  the  defendant  agreed  to 

VOL.  I.  74 


586 


CASES  IN  THE  COURT  OF  APPEALS. 


Wilkos  v.  Harper. 


pay  $800  provided  the  plaintiffs  would  procure  subscriptions, 
and  should  afterwards  invest  the  money,  &c. ;  this,  according 
to  the  cases,  would  amount  to  a  request  to  perform  those  servi- 
ces, and  the  defendant  would  be  liable.  With  all  our  anxiety 
to  sustain  this  contract,  we  do  not  think  it  susceptible  of  that 
construction.  And  our  conclusion  upon  this  point  renders  it 
unnecessary  to  examine  the  other  objections  to  the  action  sug- 
gessed  upon  the  argument. 

Judgment  affirmed. 


4177 
232 


JANET  WILKES  and  others,  appellants,  vs.  JAMES  HARPER, 
586  and  others,  respondents. 

Co-legatees  in  no  sense  sustain  to  each  other  the  relation  of  surety  in  respect  to 
the  testator's  debts,  each  being  liable  only  in  proportion  to  the  amount  of  his 
legacy. 

One  who  pays  a  debt  for  which  he  is  not  personally  bound,  and  which  is  not  a 
charge  upon  his  property,  is  not  entitled  to  be  subrogated  to  a  lien  which  the 
creditor  had  upon  the  estate  of  the  debtor. 

Legatees,  whose  shares  of  the  personal  estate  of  the  testator  have  been  wasted 
by  the  executor,  have  no  lien  upon  the  real  estate  devised  to  such  executor  tc 
make  good  their  loss. 

An  executor,  who  was  also  a  devisee  and  legatee,  died  insolvent,  having  wasted 
a  large  portion  of  the  estate,  and  leaving  unpaid  a  debt  against  the  testator, 
and  also  a  judgment  against  himself  for  a  debt  in  no  way  connected  with  the 
estate,  which  judgment  was  a  lien  on  his  share  as  devisee  in  certain  real  estate 
of  the  testator.  His  co-devisees  and  legatees  were  his  heirs  at  law,  and  as 
such  took  his  share  in  the  real  estate  ;  and  having  paid  the  whole  debt  against 
their  testator,  they  filed  their  bill  against  the  judgment  creditor  of  the  deceased 
executor,  claiming  to  be  substituted  to  the  lien  of  the  creditor  whom  they  had 
paid,  upon  the  executor's  share  in  such  real  estate,  and  to  restrain  the  sale 
thereof  by  the  judgment  creditor ;  also  claiming  a  lien  thereon  in  consequence 
of  the  devastavit  of  which  the  executor  had  been  guilty.  Held,  that  the  bill 
could  not  be  sustained. 

APPEAL  from  chancery.  The  appellants  filed  their  bill  in 
the  court  of  chancery  against  the  respondent,  stating  in  sub- 
stance as  follows  : 

Charles  Wilkes  died  in  1833,  possessed  of  personal  estate  of 


ALBANY,  DECEMBER,  1848.  537 

Wilkes  v.  Harper. 

the  value  of  about  $280,000,  and  also  of  a  very  large  real  estate, 
a  part  of  which,  consisted  of  the  house  and  lot  No.  28  Laight- 
street  in  the  city  of  New- York.  He  left  his  widow,  Jane 
Wilkes,  and  six  children,  George,  Hamilton,  Horatio,  Anne, 
Charlotte,  the  wife  of  Lord  Jeffrey  of  Edinburgh,  and  Frances, 
the  wife  of  D.  C.  Golden,  surviving  him,  and  appointed  his 
widow  executrix,  and  his  three  sons  executors  of  his  will.  By 
that  will  he  bequeathed  to  his  widow  his  house  and  lot  No.  28 
Laight-street  for  life,  giving  her  the  right  to  elect  between  that 
and  another  house  and  lot  in  the  same  street,  he  also  gave  to 
her  the  use  of  his  furniture,  plate,  pictures,  and  carriages  and 
horses  for  life.  In  addition  to  this,  he  gave  to  his  executrix 
and  executors  $50,000  in  trust  to  invest  the  same  and  pay  over 
the  interest  thereof  to  his  widow  for  life,  with  power  to  her  to 
dispose  of  $30,000  of  the  capital  thereof  at  her  death  by  will, 
and  the  other  $20,000  was  then  to  sink  into  his  residuary  estate; 
and  after  giving  $6000  in  legacies  to  his  nephews  and  niece, 
he  disposed  of  the  residue  of  his  real  and  personal  estate  among 
his  six  children  in  equal  shares ;  the  sons  to  take  their  shares 
absolutely  and  directly,  and  the  share  of  one  of  the  daughters 
was  vested  in  his  executrix  and  executors,  to  sell  the  same  and 
pay  the  proceeds  to  her  or  her  representatives.  The  shares  of 
the  other  two  daughters  he  devised  and  bequeathed  to  other 
persons  as  trustees  in  trust  to  sell  and  convert  the  same  into 
money,  and  to  invest  the  proceeds  in  permanent  securities  for 
the  separate  use  of  those  two  daughters  respectively  for  life ; 
with  power  to  the  daughters  to  dispose  of  the  same  by  will,  and 
in  default  of  such  disposition,  then  he  gave  the  same  to  the 
heirs  or  assigns  of  such  daughters  forever. 

The  widow  and  all  the  sons  proved  the  will  of  the  testator, 
and  took  out  letters  testamentary  thereon,  but  they  permitted 
Horatio  Wilkes,  one  of  their  number,  to  have  the  principal  con- 
trol and  management  of  the  funds  of  the  estate.  Out  of  the 
funds  which  came  to  his  hands  he  paid  for  debts  due  from,  and 
moneys  held  in  trust  by,  the  testator,  about  $130,000,  and  he  set 
apart  and  invested  $50,000  for  the  legacy  to  the  widow,  in  ad- 
dition to  the  furniture,  &c.,  specifically  bequeathed  to  her.  He 


588  CASES  IN  THE  COURT  OF  APPEALS. 

Wilkes  v.  Harper. 

also  paid  the  legacies  to  the  nephews  and  niece  of  the  testator. 
Portions  of  the  real  estate  had  also  been  sold,  either  by  the  de- 
visees or  by  Horatio  Wilkes,  as  their  agent,  to  the  amount  of 
about  $95,000 ;  the  proceeds  of  which  sales,  with  the  exception 
of  $26,000,  received  by  his  brother  Hamilton,  came  into  his 
hands  for  convenience  of  distribution.  He  also  received  about 
$30,000  for  the  interest  and  income  of  the  personal  estate  which 
had  come  to  his  hands  as  one  of  the  executors,  and  for  rents 
and  profits  of  real  estate  which  the  devisees  had  suffered  him 
to  collect  and  receive,  and  for  interest  on  the  proceeds  of  real 
estate  in  his  hands  for  distribution.  Out  of  these  proceeds  of 
the  real  and  personal  estate,  in  December,  1838,  Horatio  Wilkes 
distributed  between  himself  and  his  brother  George,  and  the 
trustees  of  his  three  sisters,  about  $100,000,  in  equal  propor- 
tions. Hamilton  Wilkes  retained  in  his  hands  the  $26,000,  on 
account  of  his  share  of  his  father's  real  and  personal  estate ; 
leaving  in  the  hands  of  Horatio  Wilkes  between  $50,000  and 
$60,000  of  the  proceeds  of  the  personal  estate,  and  of  the  real 
estate  that  had  been  sold  as  a  fund  to  pay  the  residue  of  the 
debts  of  the  testator,  and  for  future  distribution  among  those 
who  were  entitled  to  the  same.  This  sum,  with  the  exception 
of  $2,400,  as  the  respondents  alleged  in  their  bill,  Horatio  Wilkes 
wasted  or  appropriated  to  his  own  use,  previous  to  the  recovery 
of  the  respondents'  judgment  against  him,  in  January,  1837. 
He  also  wasted  or  appropriated  to  his  own  use  about  $27,000' 
of  the  trust  fund,  which  he  had  previously  set  apart  and  invest- 
ed for  the  legacy  to  his  mother.  In  January,  1837,  the  respon- 
dents in  this  suit  recovered  a  judgment  against  Horatio  Wilkes 
and  two  other  persons,  in  the  superior  court  of  the  city  of  New- 
York,  for  $2, 838,  for  a  debt  in  no  w ay  connected  with  the  estate 
of  tlic  testator  ;  which  judgment  became  a  lien  upon  the  legal 
title  of  Horatio  Wilkes,  in  one-sixth  of  the  remainder  in  fee  of 
the  house  and  lot,  No.  28  Laight-street,  devised  to  him  by  the 
will  of  his  father.  In  March,  18-10,  Horatio  Wilkcs  died  un- 
married and  intestate,  leaving  his  mother,  his  two  brothers,  and 
three  sisters  his  only  heirs  at  law.  All  his  estate  and  property 
of  every  kind,  with  the  exception  of  his  interest  in  the  Laiglit- 


ALBANY,  DECEMBER,  1848.  539 

Wilkes  v.  Harper. 

street  lot,  had,  previous  to  that,  been  applied  to  the  payment 
of  his  debts,  leaving  the  judgment  of  the  respondents  in  this 
suit  and  the  debts  due  from  him  on  account  of  his  father's 
estate  unpaid.  At  the  time  of  his  death  there  also  remained 
due  from  the  estate  of  the  testator,  to  Fanny  Garnett  and  Har- 
riet Garnett,  a  debt  of  about  $12,500  for  moneys  received  in  trust 
by  the  testator  in  his  lifetime,  and  invested  by  him  in  his  own 
name,  which  fund  came  to  the  hands  of  the  acting  executor, 
and  was  wasted  by  him  previous  to  the  recovery  of  the  judg- 
ment of  the  respondents.  In  May,  1840,  Hamilton  Wilkes  ap- 
plied the  $2400  of  the  proceeds  of  the  estate  of  his  father  which 
had  not  been  wasted  by  the  acting  executor,  to  the  payment  of 
a  part  of  the  debt  of  the  Misses  Garnett.  And  being  advised 
that  the  surviving  executor  and  the  executrix,  and  the  residuary 
legatees  and  devisees  were  liable  to  pay  the  balance  of  that 
debt,  he  paid  it  out  of  his  own  funds,  upon  his  and  their  ac- 
count, and  with  their  assent.  The  respondents  afterwards  sued 
out  a  scire  facias  against  one  of  the  surviving  judgment  debt- 
ors, and  against  the  assignee  of  the  other  who  had  been  dis- 
charged under  the  bankrupt  act,  and  against  the  brothers  and 
sisters,  and  the  mother  of  Horatio  Wilkes,  as  his  heirs  at  law, 
to  revive  their  judgment,  and  have  execution  thereon  against 
the  estate  upon  which  it  was  a  lien.  The  appellants,  the  widow 
and  surviving  children  of  Charles  Wilkes,  with  the  husbands 
and  trustees  of  the  daughters,  thereupon  filed  their  bill,  stating 
these  facts,  and  also  stating  that  other  claims  were  made  against 
the  estate  of  Charles  Wilkes,  the  validity  of  which,  however, 
they  did  not  admit,  and  claiming  the  right  to  have  the  residuary 
real  estate  which  was  devised  to  Horatio  by  the  will  of  his  father, 
applied  to  pay  the  balance  due  to  them,  and  the  amount  which 
Hamilton  Wilkes  had  paid  for  them  to  the  Misses  Garnett,  and 
any  other  debts  of  the  testator  which  they  might  be  compelled 
to  pay.  They  also  prayed  for  an  injunction  to  restrain  the  re- 
spondents from  proceeding  upon  the  scire  facias  to  revive  their 
judgment,  or  from  commencing  any  other  suit  or  proceeding 
to  enforce  the  lien  of  their  judgment  against  the  interest  which 
Horatio  Wilkes  had  under  the  will  of  his  father  in  the  house 


590  CASES  IN  THE  COURT  OF  APPEALS. 

Wilkes  v.  Harper. 

and  lot  No.  28  Laight-street.  The  injunction  was  issued  ac- 
cordingly, upon  the  certificate  of  one  of  the  vice  chancellors, 
acting  as  an  injunction  master.  The  chancellor,  on  the  re- 
spondents' motion  dissolved  the  injunction,  on  the  ground  that 
there  was  no  equity  in  the  bill.  And  the  complainants  ap- 
pealed to  this  court. 

W.  M.  Evarts,  for  the  appellants.  I.  The  bill  claims  an 
equitable  lien  in  favor  of  the  complainant,  Hamilton  Wilkes, 
upon  the  estate  of  Charles  Wilkes,  devised  to  Horatio  Wilkes 
and  of  which  Horatio  died  seized,  on  account  of  a  debt  of  the 
testator,  paid  in  solido  by  said  Hamilton,  and  to  which  said 
Horatio's  share  of  the  testator's  estate  is  bound  to  contribute  ; 
and  that  such  equitable  lien  is  superior  to  the  lien  at  law 
of  the  defendants'  judgment.  (1.)  The  lands  devised  were 
liable  to  contribute  ratably  to  the  payment  of  this  debt  of  the 
testator.  (2  R.  S.  369  to  372,  §§  26,  28  to  32,  36  to  48,  52,  53, 
60.)  (2.)  The  payment  of  this  debt  in  solido  by  one  of  the  de- 
visees, entitles  him  to  be  subrogated  to  all  the  rights,  remedies 
and  liens  which  the  creditor  had,  before  such  payment,  upon  or 
against  the  testator's  estate  in  the  hands  of  the  other  devisees, 
for  their  contributory  share  towards  the  payment  of  the  testa- 
tor's debt.  (1  Stor.  Eq.  §  499 ;  Cuyler  v.  Enswort/i,  6  Paige, 
32  ;  Eddy  v.  Traver,  id.  521 ;  tSchermerhorn  v.  Barhydt,  9 
id.  28,  42,  43,  47  ;  Buclian  v.  Sumner,  2  Barb.  Gh.  Rep.  165.) 
(3.)  The  rights  and  liens  of  such  creditor  of  the  testator,  and 
therefore  of  such  subrogated  devisee,  are  paramount  and  supe- 
rior to  any  lien  which  any  individual  creditor  of  any  other  de- 
visee can  obtain  upon  the  devised  estate  in  the  possession  of 
his  debtor.  (In  re  Iloiue,  1  Paige,  128  ;  Aforris  v.  Afowatt,  2 
id.  586;  Kiersted  v.  Avery,  4  id.  9;  2  Stor.  Eq.  §  1228; 
Finch  v.  Earl  of  Winchelsea,  1  P.  Wms.  278  ;  4  KenCs  Com. 
154.)  (4.)  At  the  time  of  the  payment  by  Hamilton  Wilkes, 
the  share  of  Horatio  in  the  house  in  Laight-street  had  de- 
scended to  his  brothers  and  sisters,  and  they  were  liable  in  re- 
spect to  that  share,  to  make  good  to  the  creditors  of  Charles 
Wilkes,  the  contributory  share  of  Horatio  as  the  devisee  of 


ALBANY,  DECEMBER,  1848.  591 

Wilkes  v.  Harper. 

Charles  Wilkes,  to  the  payment  of  such  testator's  debt.  The 
payment  by  Hamilton  was  a  payment  by  them  all,  and  as  it 
included  Horatio's  contributory  share,  they  have  an  equitable 
lien  upon  his  share  of  the  testator's  property  for  their  indemnity. 
(5.)  The  payment  by  Hamilton  Wilkes  thus  made  after  the 
death  of  Horatio,  and  with  the  knowledge  and  assent  of  his 
heirs  and  administrator,  as  including  Horatio's  contributory 
share,  (if  necessary  to  sustain  the  equity  claims  against  Hora- 
tio's share  of  his  father's  estate,)  entitles  Hamilton  Wilkes  to  be 
considered  the  equitable  assignee  of  the  Misses  Grarnett's  claim. 
(6.)  The  complainant,  Hamilton  Wilkes,  therefore,  has  an 
equitable  lien  to  the  amount  of  $2200,  or  thereabouts,  with  in- 
terest, upon  Horatio's  estate  in  remainder  in  one-sixth  of  the 
house  in  Laight-street,  superior  to  the  lien  at  law  of  the  de- 
fendant's judgment. 

II.  The  bill  sets  forth  that  Horatio  Wilkes  was  the  sole  act- 
ing executor  (though  others  qualified)  of  the  estate  of  Charles 
Wilkes ;  that  there  were  abundant  assets  of  said  estate  in  his 
hands  to  pay  all  the  debts  of  the  same  ;  that  Horatio  was  guilty 
of  a  devastavit  before  the  recovery  of  the  defendant's  judgment ; 
and  upon  an  accounting  made  up  between  him  and  his  father's 
estate,  as  of  Jan.  1,  1840,  he  was  found  to  be  indebted  to  his 
father's  estate  in  the  sum  of  $59,112.26,  upon  such  devastavit 
so  committed  prior  to  the  recovery  of  the  defendant's  judgment. 
(1.)  The  co-devisees  of  Horatio,  as  against  him  are  entitled  to 
have  the  real  estate  which  was  devised  to  him  by  his  father 
subjected  to  the  payment  of  the  debts  of  the  estate  of  Charles 
Wilkes,  before  they  shall  be  called  upon  to  contribute,  and  they 
would  have  an  equitable  lien  to  that  effect  upon  Horatio's  share 
of  his  father's  estate  in  his  hands,  or  in  the  hands  of  his  heirs 
or  devisees.     (2.)  A  judgment  creditor's  lien  upon  the  property 
of  his  debtor  is  always  subject  to  every  superior  equitable  lien 
upon  the  same,  whether  latent  or  otherwise. 

III.  The  co-devisees  of  Horatio  have  also  an  equitable  lien 
upon  their  testator's  estate  in  the  hands  of  Horatio  to  make 
good  the  whole  sum  of  $59,112.26  and  interest  from  January 
1, 1840,  lost  to  them  by  reason  of  the  devastavit  of  Horatio,  and 


592  CASES  IN  THE  COURT  OF  APPEALS. 

Wilkea  v.  Harper. 

if  there  were  no  debts  of  the  estate  of  the  testator  to  be  provided 
for,  the  co-devisees  of  Horatio  would  have  a  better  lien  upon 
his  estate  derived  from  their  testator,  tban  any  individual  cred- 
itor of  Horatio  could  have.  (1.)  Horatio  will  be  deemed  to  have 
taken  his  full  share  of  the  testator's  estate  in  the  sum  which 
lie  wasted,  and  any  devised  property  found  in  his  possession 
after  the  devastavit  will  be  treated  as  a  residuum  of  the  testa- 
tor's estate  for  distribution  among  the  other  devisees.  (2.)  The 
equitable  claims  of  the  creditors  and  co-devisees  of  Horatio  were 
fixed  anterior  to  the  recovery  of  the  defendant's  judgment,  and 
are  therefore  prior  in  time,  as  well  as  superior  in  equity. 

S.  A,  Foot,  for  the  respondents.  I.  The  personal  assets  of 
Charles  "Wilkes,  the  testator,  being  not  only  sufficient,  but  vastly 
more  than  sufficient  to  pay  all  his  debts  ;  and  notwithstanding 
the  large  amount  wasted  by  Horatio  Wilkes,  his  son  and  act- 
ing executor,  there  yet  remaining  unwasted  and  actually  appli- 
ed to  the  payment  of  the  testator's  debts  and  distributed  among 
Ids  legatees,  specific  and  residuary,  sufficient  to  pay  all  his 
debts — and  no  creditor  of  the  testator,  after  due  proceedings 
before  the  proper  surrogate's  court,  or  at  law,  having  been  una- 
ble to  collect  his  debt,  or  any  part  thereof,  from  the  personal 
representatives  of  the  testator,  or  from  his  next  of  kin  or  lega- 
tees— neither  the  appellants,  nor  any  creditor  of  the  testator, 
nor  any  person  standing  in  the  place  of  and  having  the  rights 
of  such  creditor,  has  any  claim,  legal  or  equitable,  on  the  real 
estate  devised  by  the  testator  to  his  son,  Horatio  Wilkes. 
(•2  It.  8.  Bd  ed.  547,  §  33  ;  id.  550,  §  60.  See  also  id.  548,  §  36 
<iere  v.  Clark,  6  Hill,  350 ;  Butts  v.  Genung,  5  Paige,  254 ; 
^chermerhorn  v.  Barhydl,  id.  28.) 

IT.  The  debt  or  demand  which  the  appellants  had  against 
Horatio  Wilkes  in  his  lifetime,  and  have  since  his  death  against 
his  representatives,  by  reason  of  his  wasting  a  large  amount  of 
the  testator's  estate,  however  legal  and  just,  constitutes  no 
equitable  lien  on  his  real  estate,  whether  acquired  by  devise 
from  the  testator  or  otherwise,  especially  to  the  prejudice  of  the 
lien  of  the  respondents  by  virtue  of  their  judgment. 


ALBANY,   DECEMBER,  1848.  593 

Wilkes  v.  Harper. 

GARDINER,  J.  The  complainants  are  the  legatees  and  devi- 
sees of  Charles  Wilkes,  the  testator,  and  some  of  them  the  heirs 
at  law  of  Horatio  Wilkes,  his  executor,  who  died  intestate.  As 
legatees  of  Charles  Wilkes  they  in  no  sense  sustained  to  their 
co-legatee  Horatio,  or  to  each  other,  the  relation  of  surety  in 
respect  to  the  debt  of  the  Misses  Garnett,  or  any  other  demand 
against  the  estate  of  their  testator.  According  to  the  revised 
statutes,  452,  section  28,  "  The  whole  amount  which  a  creditor 
of  the  testator  shall  be  entitled  to  recover,  shall  be  apportioned 
among  the  legatees  in  proportion  to  the  respective  amounts  of 
their  several  legacies,  and  such  proportion  only  shall  be  recov- 
ered of  each  legatee."  The  judgment  prescribed  by  the  30th 
section  is  to  the  same  effect.  Their  liability  as  devisees  in  re- 
spect to  the  real  estate  was  in  like  manner  several,  and  limited 
by  the  estate,  interest,  or  right  devised  to  them  by  the  testator. 
(2  R.  S.  §  32.)  The  complainants  were  therefore  separately 
liable  for  their  respective  proportions,  and  the  payment  of  Hora- 
tio's share  by  the  other  legatees,  if  at  his  request,  would  have 
been  money  advanced  for  his  use ;  and  if  voluntarily  made 
without  his  assent,  it  would  impose  no  obligation,  either  legal 
or  equitable,  upon  him  or  his  representatives. 

The  same  remark  is  applicable  to  that  portion  of  the  estate 
of  Charles  Wilkes  which  came  to  the  hands  of  Horatio  as  ex- 
ecutor, either  with  or  without  the  assent  of  the  complainants, 
and  which  was  wasted  by  him.  In  either  case,  Horatio  would 
have  become  the  debtor  of  his  co-legatees  or  devisees  respect- 
ively for  their  distributive  shares  of  the  testator's  property.  But 
this  would  give  them  no  lien  either  at  law  or  in  equity  upon 
the  real  estate  devised  to  Horatio.  We  agree  fully  with  the 
chancellor,  that  there  was  nothing  in  the  nature  of  an  equitable 
hypothecation  by  Horatio  of  his  interest  as  devisee  in  the  real 
estate  of  his  father  as  a  security  for  the  faithful  performance  of 
his  trust  as  executor. 

It  is  urged  by  the  counsel  for  the  appellants,  that  at  the 
time  of  the  payment  by  Hamilton  Wilkes  of  the  Garnett  debt, 
as  stated  in  the  bill,  the  share  of  Horatio  in  the  house  in  Laight- 
street  had  descended  to  his  brothers  and  sisters,  and  they  were 

VOL.  I.  To 


594  CASES  IN  THE  COURT  OF  APPEALS. 

Wilkes  v.  Harper. 

liable  in  respect  to  that  share  to  make  good  to  the  creditors  of 
Charles  Wilkes  the  contributory  share  of  Horatio  as  devisee  of 
Charles  Wilkes  to  the  payment  of  his  debt ;  that  the  payment 
by  Hamilton  was  a  payment  by  them  all ;  and  as  it  included 
Horatio's  contributory  share,  they  had  an  equitable  lien  upon 
his  share  of  the  testator's  property  for  their  indemnity.  The 
complainants,  it  must  be  remembered,  are  the  widow  and  sur- 
viving children  of  Charles  Wilkes,  and  the  husbands  and  trus- 
tees of  the  daughters.  The  bill  states  that  the  Garnetts 
demanded  payment  of  their  debt  from  the  estate  of  Charles 
Wilkes.  It  alleges  that  they  were  advised  that  they  were  lia- 
ble in  respect  of  any  estate  or  moneys  received  from  Charles 
Wilkes ;  not  in  respect  of  the  estate  which  descended  to  a  part 
of  them  from  one  of  his  devisees.  And  being  so  advised,  Ham- 
ilton Wilkes  thereupon  paid  the  debt  with  his  own  money,  un- 
der an  agreement  with  all  the  complainants  that  it  should  be 
considered  a  payment  in  behalf  of  the  estate  of  Charles  Wilkes. 
They  then  insist  that  Hamilton  Wilkes  ought  to  be  subrogated 
to  the  right  of  the  Garnetts  to  the  extent  of  $2,200,  the  contrib- 
utory share  of  Horatio,  and  that  the  former  has  a  lien  for  that 
amount  paramount  to  the  personal  creditors  of  the  latter.  The 
payment  was  therefore  on  account  of  the  presumed  liability  of 
the  complainants  as  legatees  and  devisees  of  Charles  Wilkes  ; 
and  their  promise  of  repayment  was  in  the  same  character. 
Hence  the  claim  that  Hamilton  should  be  substituted  in  place 
of  the  Garnetts,  and  paid  the  contributory  share  of  Horatio,  is 
in  behalf  of  all  the  complainants  as  legatees  and  devisees  of 
Charles,  and  not  in  behalf  of  the  heirs  of  Horatio  Wilkes.  The 
whole  frame  of  the  bill  is  therefore  inconsistent  with  the  idea 
now  suggested  for  the  first  time,  that  the  money  was  advanced 
to  the  Garnetts  by  Hamilton,  at  the  request  of  his  co-heirs  in 
respect  to  his  and  their  liability  as  the  heirs  of  their  brother. 

And,  in  the  second  place,  the  complainants  who  were  heirs 
at  law  of  Horatio  Wilkes,  were  in  that  character  liable  for  all 
his  debts  to  the  extent  of  the  real  estate  inherited  by  them. 
(2  R.  S.  452,  §  32.)  In  order  to  retain  the  property  they  were 


ALBANY,  DECEMBER,   1848.  595 

Mathews  ».  Aikin. 

bound  to  pay  both  the  contributory  share  of  Horatio  for  the 
Garnett  debt,  and  the  judgment  of  the  defendants. 

The  bill  is  silent  as  to  the  value  of  Horatio's  interest  in  the 
Laight-street  property.  For  aught  we  can  say,  it  may  have 
been  sufficient  to  discharge  both  demands.  The  most  that  the 
heirs  of  Horatio  can  claim  is,  that  they  have  paid  a  debt  of 
their  ancestor  which  was  preferred  to  that  of  the  appellees  by 
the  equity  of  the  statute.  (2  It.  &  455,  §  48.) 

But  if  the  residue  of  the  real  estate,  after  deducting  the  con- 
tributory share  of  Horatio  to  the  Garnett  debt,  was  sufficient  to 
pay  the  judgment  of  the  appellees  or  any  part  of  it,  they  ought 
not  to  have  been  restrained  by  injunction  from  obtaining  sat- 
isfaction pro  tanto. 

The  decree  of  the  chancellor  must  be  affirmed. 

Decree  affirmed. 


595 

4 
28 

MATHEWS  and  others,  appellants,  vs.  AIKEST,  respondent.         ^2 

58 

The  right  of  a  surety  to  be  subrogated,  on  payment  of  the  debt,  to  the  securities     J.~. 
held  by  the  creditor,  does  not  depend  upon  contract,  but  rests  upon  principles   - 
of  justice  and  equity.  I  170  s  5 

A.  owed  a  debt  to  B.,  who  was  indebted  to  C.  At  the  request  of  B.,  and  in  pur- 
suance of  an  arrangement  between  B.  and  C.,  A.  executed  a  bond  and  mortgage 
for  the  amount  of  his  debt,  directly  to  C.  The  complainant  D.,  on  the  solicita- 
tion of  B.,  but  without  any  request  from  the  mortgagor,  guarantied  the  payment 
of  the  bond.  The  holder  of  the  bond  and  mortgage,  who  had  also  become  the 
owner  of  thu  equity  of  redemption  under  a  junior  mortgage,  sued  D.  upon  his 
guaranty  and  compelled  him  to  pay  the  debt.  Held,  on  bill  filed  by  D.,  that  he 
was  entitled  by  substitution  to  the  benefit  of  the  mortgage  for  his  indemnity. 
Where  real  estate  is  encumbered  by  two  mortgages,  and  the  holder  of  the  junior 
one  forecloses  and  purchases  in  the  property,  the  presumption  is  that  he  bids  to 
the  value  of  the  equity  of  redemption  only ;  and  the  land  becomes  from  thence- 
forth the  primary  fund  for  the  payment  of  the  debt  secured  by  the  senior  mort- 


APPEAL  from  the  supreme  court  in  equity.    Abraham  Aikin 
filed  his  bill  in  the  court  of  chancery  before  the  vice  chancellor 


596  OASES  IN  THE  COURT  OF  APPEALS. 

Mathews  v.  Aikin. 

of  the  seventh  circuit,  against  John  Mathews  and  Oliver  Or- 
cutt,  who  appeared  and  defended,  and  against  Edward  Aikin, 
who  suffered  the  bill  to  be  taken  as  confessed.  The  case,  so 
far  as  material  to  be  stated,  upon  pleadings  and  proofs  was  as 
follows :  On  or  before  the  22d  of  November,  1837,  Edward 
Aikin,  who  was  the  son  of  the  complainant,  executed  to  James 
Hasbrook  a  bond  secured  by  mortgage  on  certain  real  estate, 
bearing  date  December  6, 1856,  conditioned  for  the  payment  of 
$1300  in  six  equal  annual  instalments.  At  the  time  of  the  ex- 
ecution of  the  bond  and  mortgage,  Edward  Aikin  was  indebted 
to  one  Theodore  Wood  in  the  amount  thereof,  and  Wood  being 
also  indebted  to  Hasbrook,  procured  the  bond  and  mortgage  to 
be  executed  directly  to  him.  At  the  time  or  soon  after  the 
bond  and  mortgage  were  given,  the  complainant,  at  the  solici- 
tation of  said  Wood  and  Hasbrook,  executed  upon  the  bond  a 
sealed  guaranty  of  the  payment  thereof.  There  was  no  evi 
dence  that  the  complainant  executed  the  guarant}^  at  the  de- 
sire or  request  of  Edward  Aikin,  the  mortgagor.  Edward 
Aikin  was  examined  as  a  witness  for  the  complainant,  and  on 
cross-examination  testified  that  he  advised  his  father  not  to  sign 
the  guaranty,  informing  him  that  he  was  under  no  obligation 
to  procure  a  guaranty. 

On  the  27th  of  August,  1841,  the  said  Edward  Aikin  execut- 
ed to  the  defendant  John  Mathews  a  mortgage  upon  the  same 
premises,  conditioned  to  pay  the  sum  of  $663.36.  The  mort- 
gage to  Ilasbrook  had  been  previously  recorded,  and  Mathews 
had  also  actual  notice  of  the  existence  thereof.  On  the  llth 
of  February,  1843,  Mathews  having  caused  his  mortgage  to  be 
foreclosed  in  chancery,  purchased  the  premises  at  master's  sale 
under  the  decree  for  the  sum  of  $500,  and  procured  the  master's 
deed  to  himself.  After  such  purchase,  and  on  the  26th  of 
April,  1843,  the  personal  representatives  of  James  Ilasbrook 
(who  had  died)  assigned  the  bond  and  mortgage  first  above 
mentioned  to  the  defendant  Oliver  Orcutt.  The  consideration 
for  this  assignment  was  paid  by  Mathews,  and  such  assign- 
ment was  made  in  trust  for  him  and  for  his  benefit  only.  Im- 
mediately afterwards,  Mathews  caused  an  action  at  law  to  be 


ALBANY,  DECEMBER,  1848.  597 

Mathews  v.  Aikin. 

commenced,  in  the  name  of  Hasbrook's  representatives,  against 
the  complainant  upon  the  aforesaid  guaranty,  and  recovered 
judgment  against  him  for  the  sum  of  $370.76,  the  amount  of 
the  last  instalment  due  upon  the  bond  and  mortgage,  the  other 
instalments  having  been  previously  paid.  The  complainant 
thereupon  tendered  the  amount  recovered  against  him,  and 
demanded  that  Orcutt  assign  the  bond  and  mortgage  to  him. 
This  was  refused ;  and  the  complainant  then  paid  absolute^ 
the  sum,  and  demanded  an  assignment.  This  was  also  refused. 
At  the  commencement  of  this  suit,  the  defendant  Mathews 
was  in  possession  of  the  premises  under  his  purchase  at  the 
master's  sale  above  mentioned.  Edward  Aikin  was  insolvent. 
The  complainant  claimed  by  the  bill  to  be  subrogated  to  the 
rights  of  Orcutt  or  Mathews  as  the  holder  of  the  bond  and 
mortgage  for  the  purpose  of  reimbursing  to  himself  the  sum 
collected  of  him  by  suit  on  the  guaranty  ;  and  the  prayer  of 
the  bill  was  that  such  right  of  subrogation  might  be  declared, 
and  that  the  premises  might  be  sold,  &c. 

The  vice  chancellor  decreed  in  favor  of  the  complainant 
according  to  the  prayer  of  the  bill.  The  defendants  appealed 
to  the  chancellor,  and  the  cause  then  became  vested  in  the 
supreme  court  organized  under  the  new  constitution ;  and  that 
court,  sitting  in  the  fifth  district,  affirmed  the  decree  of  the 
vice  chancellor.  The  defendants  appealed  to  this  court. 

B.  I).  Noxon,  for  the  appellants.  When  a  third  person  vol- 
unteers to  guarantee  the  payment  of  a  boud  and  mortgage 
after  its  execution  and  delivery,  with  or  without  a  consider- 
ation passing  to  him  from  the  holder,  and  especially  when  he  so 
guarantees  against  the  express  desire  and  advice  of  the  mort- 
gagor and  obligor,  he  cannot,  by  paying  the  amount  secured 
by  the  bond  and  mortgage,  make  the  mortgagor  his  debtor,  and 
recover  against  him  for  money  paid;  nor  does  he,  by  such 
officious  guarantee,  acquire  the  character  of  a  surety,  so  that, 
after  payment  by  him  of  the  demand,he  can  ask  to  be  subrogated 
or  substituted  to  all  the  rights  and  remedies  of  the  mortgagee  or 
holder  of  the  mortgage.  Such  payment  extinguishes  the  debt 


598  CASES  IN  THE  COUET  OF  APPEALS. 

Mathews  v.  Aikin. 

and  the  security ;  and  the  guarantor  has  no  claim  either  at  law 
or  equity  to  be  repaid.  (Com.  on  Cont.  452;  id.ed.  0/1809, 151 ; 
Child  v.  Morky,  8  T.  JR.  613 ;  Exatt  v.  Partridge,  id.  310 ;  3 
John.  434 ;  10  id.  361 ;  14  id.  88  ;  Stor.  Eq.  §  499  b,  and  note  3 
to  p.  477  ;  Copis  v.  Middkton,  1  Tur.  &  Russ.  228  ;  Hodgson  v. 
Shaw,  3  J/yfoe  <fe  Keene,  190,  1,  2 ;  Sandford  v.  McLean,  3 
Pa^e,  122 ;  JFmfc  v.  Jtfasfi/y,  8  Watts,  384 ;  4  £ar6.  Eq.  Dig. 
672,  §  13.) 

Geo.  F.  Comstock,  for  the  respondent.  The  complainant  as 
a  mere  surety  is  entitled  to  be  substituted  to  all  the  rights  of 
the  holder  of  the  bond  and  mortgage,  for  the  purpose  of  en- 
forcing the  mortgage  lien  for  the  sum  collected  of  him,  in  the 
same  manner  that  the  holder  of  the  -bond  and  mortgage  might 
have  done.  (1  Story's  Eq.  §§  327,  499,  501,  502  ;  1  John.  Ch. 
409  ;  4  id.  545  ;  2  id.  554 ;  6  Paige,  521 ;  10  id.  445.) 

This  right  of  substitution  is  not  affected  by  the  consideration 
urged  on  the  other  side,  that  Abraham  Aikin  did  not  execute 
the  guaranty  at  the  request  of  Edward  Aikin.  The  right  of 
substitution  does  not  depend  upon  any  express  or  implied  con- 
tract between  the  principal  and  surety ;  but  it  rests  upon  prin- 
ciples of  equity  wholly  independent  of  contract.  It  results  from 
the  relation  which  the  surety  and  the  creditor  hold  to  each 
other,  and  from  the  equitable  obligation  of  the  principal  to  pay 
the  debt.  (Deering  v.  The  Earl  of  Winchelsea,  2  B.  &  P.  270  ; 
Norton  v.  Coons,  3  Demo,  130  ;  Story's  Eq.  §  493  ;  §  499  and 
note;  Hodgson  v.  Shaw,  3  Mylne  &  Keene,  190,  1,  2,  per  Ld. 
Brougham ;  Sir  Samuel  Romilly  arguendo,  14  Ves.  159 ;  2 
John.  Ch.  Rep.  561,  562  ;  4  id.  130,  131,  132.)  The  follow- 
ing instances  may  also  be  put  as  illustrations  of  the  doctrine 
that  the  right  of  substitution  does  not  depend  upon  contract. 
(1.)  A  junior  mortgagee  who  pays  off  a  senior  mortgage  is  en- 
titled to  be  substituted.  (4  John.  Ch.  370 ;  2  Cowen,  118 ;  9  id. 
409  ;  3  Wend.  412 ;  5  Hill,  280.)  (2.)  Where  two  parcels  of 
real  estate  owned  by  different  persons  are  covered  by  one 
mortgage,  and  one  of  the  owners  ought  to  pay  it ;  if  the  other 
is  obliged  to  pay  it,  he  is  entitled  to  be  substituted  to  the  lien. 


ALBANY,  DECEMBER,  1848.  599 

Mathews  v.  Aikin, 

(3.)  A  mortgagor  who  sells  subject  to  the  mortgage,  and  is 
obliged  to  pay  by  suit  on  the  bond,  is  entitled  to  this  right.  (10 
Paige,  595.)  (4.)  In  the  case  of  a  vendor's  lien,  if  the  vendor 
resorts  to  the  personal  assets  of  a  decedent,  the  creditors  and 
legatees  are  entitled  to  take  his  place.  (2  /Story's  JEq.  1227.) 
(5.)  When  one  creditor  has  a  lien  on  two  funds,  and  another 
only  on  one  ;  if  the  first  creditor  resorts  to  the  fund  on  which 
the  other  has  a  lien,  the  latter  takes  his  right  in  the  other  fund 
by  substitution.  (1  Story's  Eq.  633,  637.) 

It  does  not  at  all  alter  the  case  that  the  defendant  Mathews 
has  acquired  title  to  the  premises  under  a  junior  mortgage  given 
to  himself.  Such  a  title  is  subject  to  the  senior  mortgage  and 
to  the  right  of  the  surety,  who  has  paid  the  mortgage,  to  be 
subrogated.  Mathews  had  also  both  actual  and  constructive 
notice  of  the  senior  mortgage,  when  he  took  his  mortgage  and 
when  he  purchased  at  the  sale  under  it.  Further ;  when 
Mathews  purchased  the  equity  of  redemption  under  the  junior 
mortgage,  the  premises  became  the  primary  fund  for  the  pay- 
ment of  the  debt,  even  as  against  Edward  Aikin,  the  mortgagor, 
and  when  the  bond  and  mortgage  were  afterwards  purchased 
in  by  Mathews,  and  the  assignment  taken  to  Orcutt  in  trust 
for  him,  the  debt  became  in  equity  extinguished.  (7  Paige, 
248  ;  2  John.  Ch.  125  ;  10  Paige,  503,  249.) 

» 

JOHNSON,  J.  It  is  a  general  and  well  established  principle 
of  equity,  that  a  surety,  or  a  party  who  stands  in  the  situation 
of  a  surety,  is  entitled  to  be  subrogated  to  all  the  rights  and 
remedies  of  the  creditor  whose  debt  he  is  compelled  to  pay,  as 
to  any  fund,  lien,  or  equity  which  the  creditor  had  against  any 
other  person  or  property  on  account  of  such  debt.  The  gene- 
ral doctrine,  as  a  rule  of  equity,  is  not  controverted  on  the  part 
of  the  appellants,  but  is  fully  conceded.  It  is  insisted,  however, 
by  their  counsel,  that  the  guarantor  in  this  instance  did  not  be- 
come such  at  the  request  of  the  debtor  ;  that  as  to  the  debtor, 
he  was  a  mere  volunteer,  having  no  remedy  over  against  him, 
and  never  acquiring  the  character  of  a  surety  so  as  to  be  enti- 
tled to  subrogation  to  the  rights  and  remedies  of  the  creditor. 


600  CASES  IN  THE  COURT  OF  APPEALS. 

Mathews  v.  Aikin. 


The  objection  seems  somewhat  narrow  and  technical  when 
addressed  to  a  court  of  equity  whose  peculiar  province  is  to  mete 
out  substantial  justice  where  the  more  restricted  powers  of -the 
common  law  fail  in  its  administration.  But  it  leads  us  to  ex- 
amine carefully  into  the  grounds  and  principles  upon  which  the 
right  of  subrogation  rests.  Does  it  rest  upon  the  foundation  of 
a  contract  binding  in  a  court  of  law  between  the  debtor  and  his 
surety  ?  In  other  words ;  does  it  turn  substantially  upon  the 
question  whether  or  not  the  surety  who  has  paid  the  debt  to 
the  creditor  has  a  remedy  over,  on  his  contract,  against  the  prin- 
cipal debtor  for  money  paid  in  an  action  at  law  ?  or  does  it  not 
rest  rather  upon  the  broader  and  deeper  foundations  of  natural 
justice  and  moral  obligation  ?  Chancellor  Kent  says,  in  Hay* 
v.  Ward,  (4  John.  Gli.  130,)  "  This  doctrine  does  not  belong 
merely  to  the  civil  law  system.  It  is  equally  a  well  settled 
principle  in  the  English  law  that  a  surety  will  be  entitled  to 
every  remedy  which  the  principal  debtor  has,  to  enforce  every 
security,  and  to  stand  in  the  place  of  the  creditor,  and  have 
those  securities  transferred  to  him,  and  to  avail  himself  of  those 
securities  against  the  debtor.  This  right  stands  not  upon  con- 
tract, but  upon  the  same  principle  of  natural  justice  upon  which 
one  surety  is  entitled  to  contribution  against  another."  Lord 
Brougham,  in  Hodgson  v.  Shaw,  (3  Mylne  &  Keene,  183,)  said  : 
;'  The  rule  here  is  undoubted,  and  is  founded  on  the  plainest 
principles  of  natural  reason  and  justice,  that  the  surety  paying 
off  a  debt  shall  stand  in  the  place  of  the  creditor,  and  have  all 
the  rights  which  he  has  for  the  purpose  of  obtaining  his  reim- 
bursement. It  is  scarcely  possible  to  put  this  right  of  substitu- 
tion too  high  ;  and  the  right  results  more  from  equity  than  from 
contract  or  quasi  contract  unless  in  so  for  as  the  known  cquitv 
may  be  supposed  to  be  imported  into  any  transaction,  and  so  to 
raise  a  contract  by  implication."  Sir  Samuel  Komilly,  in  his 
argument  in  Craythorne  v.  Kwinborne,  (14  Ves.  159,)  stated 
the  rule  to  bo,  that  "  a  surety  will  be  entitled  to  every  remedy 
which  the  creditor  has  against  the  principal  debtor  to  enforce 
every  security  by  all  means  of  payment,  to  stand  in  the  place 
of  the  creditor  not  only  through  the  medium  of  contract  but 


ALBANY,  DECEMBER,  1848. 


Mathews  v.  Aikin. 


even  by  means  of  securities  entered  into  without  the  knowl- 
edge of  the  surety,  having  a  right  to  have  those  securities  trans- 
ferred to  him,  though  there  was  no  stipulation  for  that,  and  to 
avail  himself  of  all  those  securities  against  the  debtor."  And 
this  exposition  of  the  rule  was  fully  sanctioned  by  Lord  Eldon 
in  giving  judgment  in  that  case. 

The  equity  is  certainly  as  strong,  and  it  seems  to  me  some- 
what stronger  in  favor  of  substitution,  as  against  the  creditor 
at  least,  than  it  is  between  sureties  for  contribution  where  one 
has  paid  the  whole  debt,  and  it  has  been  likened  to  the  case  of 
contribution  between  sureties.  As  between  them  the  rule  in 
equity  is  clear  that  the  ground  of  relief  does  not  stand  upon 
any  notion  of  mutual  contract  express  or  implied,  but  arises 
from  principles  of  equity  independent  of  contract.  Story's  Eq. 
§  493,  and  notes,  where  the  authorities  are  all  collected.  This 
is  also  substantially  the  rule  in  courts  of  law.  (Norton  v.  Coons, 
3  Demo,  130.)  In  that  case  the  circumstances  under  which 
the  defendant  became  co-surety  were  such  as  to  repel  the  pre- 
sumption of  any  promise  to  make  contribution.  But  the  court 
held  that  his  being  a  surety  on  the  same  contract  without 
qualification  in  terms  was  sufficient  to  fix  his  obligation  to  con- 
tribute, and  that  for  the  purposes  of  giving  the  plaintiffs  a 
remedy  the  court  would  presume  a  promise.  A  promise  was 
therefore  imputed  where  none  confessedly  existed,  in  order  to 
provide  a  remedy  for  the  party  where  there  was  no  doubt  as 
to  the  legal  liability  ;  and  the  legal  liability  in  such  cases 
springs  from  the  equitable  obligation  ;  the  law  courts  having 
borrowed  their  jurisdiction  in  these  particular  cases  from  the 
courts  of  equity.  In  the  present  case  it  seems  to  me,  if  it  were 
necessary,  a  court  of  equity  ought  to  imply  a  promise  on  the 
part  of  the  creditor  to  subrogate  the  surety  to  all  his  rights  and 
remedies,  in  case  he  resorted  to  the  latter  for  payment  of  the 
debt  upon  his  guarantee.  The  equitable  obligation  resting 
upon  him  to  do  so  seems  to  me  most  manifest. 

It  is  true,  the  case  shows  that  the  principal  debtor  informed 
the  guarantor  that  he  was  under  no  promise  or  obligation  to 
give  security,  which  seems  to  have  been  insisted  upon  by  the 
'  VOL.  I.  76 


602  CASES  IN  THE  COURT  OP  APPEALS. 

Mathews  v.  Aikin. 

creditor,  and  that  he  advised  his  father  not  to  give  the  guar- 
anty. There  is  nothing,  however,  in  the  case  to  show  that  the 
debtor  did  not  subsequently  assent  to  it,  even  at  the  time  the 
guaranty  was  executed,  or  that  the  money  was  not  paid  at  his 
express  request  afterwards.  But  the  case  does  show  that  the 
guaranty  was  executed  at  the  repeated  and  urgent  solicitations 
of  Wood,  the  original  creditor,  and  of  Hasbrook,  to  whom 
Wood  proposed  to  transfer  the  debt,  and  to  whom,  by  arrange- 
ment between  them,  the  bond  and  mortgage  were  executed. 
As  to  the  creditor  Mathews,  therefore,  who  now  stands  in  the 
place  of  Hasbrook,  Abraham  Aikin  was  not  a  voluntary  sure- 
ty for  the  debt  of  his  son.  but  became  so  at  his  express  request, 
or  that  of  the  mortgagee  under  whom  he  claims,  and  it  seems 
to  me,  after  Mathews  has  pursued  Abraham  Aikin  to  judg- 
ment and  fixed  his  liability  as  surety  for  his  son  in  a  court  of 
law,  it  does  not  lie  with  him  to  turn  round  and  say  he  is  a 
mere  volunteer  in  assuming  the  obligation  and  paying  the 
money,  and  therefore  not  entitled  to  the  rights  and  privileges 
of  a  surety.  The  creditor  should  not  be  permitted  in  a  court 
of  equity  to  question  the  rights  of  the  surety  after  the  obliga- 
tion has  been  incurred  at  his  request,  and  he  has  fixed  the 
character  upon  him  by  suit  and  j  udgment  in  a  court  of  law. 
As  to  him  at  least,  Aikin,  the  father,  was  surety  for  the  debt 
of  the  son,  and  was  compelled  to  pay  that  debt,  or  a  portion 
of  it ;  and  it  is  immaterial  as  to  the  creditor  what  the  state  of 
the  case  is,  or  the  legal  rights  are,  as  between  the  principal 
debtor  and  the  surety.  There  is  no  reason  why  the  creditor 
should  set  up  a  defence  for  the  debtor.  It  is  sufficient  for  him 
that  he  has  received  his  debt  of  the  surety  to  create  the  obli- 
gation on  his  part  to  surrender  to  the  surety  the  securities  in 
his  hands.  He  is  not  to  litigate  the  rights  of  the  debtor,  and 
set  up  defences  for  the  latter  which  he,  peradventure,  might 
be  too  honest  and  conscientious  to  set  up  against  the  securities 
in  the  hands  of  a  surety  who  had  paid  his  debt  for  him. 

It  might  be  different  if  the  debtor  himself  was  here  urging 
this  defence,  and  especially  if  he  was  able  to  show  that  the 
surety  entered  into  the  obligation,  not  only  against  his  wish  or 


ALBANY,  DECEMBER,  1848.  603 

Mathews  «.  Aikin. 

request,  but  for  some  purpose  of  fraud  or  oppression,  or  to  make 
him  his  debtor  against  his  will,  or,  as  suggested  tyf  the  appel- 
lant's counsel,  to  compel  him  to  pay  a  debt  to  which,  as  between 
him  and  the  creditor,  he  had  a  good  defence  at  law.  In  such 
cases  a  court  of  equity  would  not  lend  the  surety  its  aid,  as  he 
would  not  come  before  it  with  clean  hands.  But  this  is  no  such 
case.  The  principal  debtor  is  here  made  a  party,  and  suffers 
the  bill  to  be  taken  as  confessed  against  him.  He  sets  up 
no  such  defence,  nor  does  he  pretend  that  he  is  not  liable,  or 
that  he  is  not  under  both  a  legal  and  a  moral  obligation  to  his 
surety  to  repay  the  money  which  the  latter  has  advanced  for 
him.  Indeed,  he  expressly  swears  that  his  father  was  a  mere 
security  for  him  for  the  payment  of  the  bond,  without  receiving 
any  consideration  for  becoming  such  surety.  It  is  true  he  also 
testifies  that  he  advised  his  father  not  to  sign  the  guaranty,  but 
it  is  obvious  to  my  mind  that  this  was  in  reference  to  a  claim 
made  by  the  creditor  upon  the  debtor,  that  he  was  under  some 
obligation  to  give  some  additional  security.  This  appears  to 
me  quite  evident  from  the  appellant's  answer  and  the  course  of 
the  examination.  It  is  sufficient,  however,  as  I  apprehend,  that 
the  debtor  sets  up  no  defence  of  the  kind,  and,  although  a  partv, 
admits  the  validity  of  the  respondent's  claim  and  would  not 
afterwards  be  heard  to  allege  it  was  illegal  or  invalid.  Could 
the  appellant  Mathews  be  permitted  to  set  up  a  defence  so  un- 
gracious as  against  a  surety  whom  he  has  compelled  to  pay  his 
debt,  he  would  be  bound  in  order  to  make  it  complete  to  show, 
as  I  think,  that  the  principal  debtor  resisted  the  surety's  claim, 
and  that  the  securities  in  the  hands  of  the  latter  would  be  worth, 
less,  inasmuch  as  he  could  never  enforce  them  against  such 
principal.  Otherwise  the  court  would  intend  that  the  princi- 
pal was  willing  to  do  what  equity  required  him  to  perform. 

But  in  addition  to  the  general  reasons  against  the  creditor's 
resisting  the  claim  of  the  surety  to  be  subrogated,  especially 
when  the  debtor  makes  no  objection, there  is  I  think  in  this  case 
a  particular  reason  why  the  appellant  Mathews  should  not  be 
heard  to  interpose  such  an  objection.  The  case  shows  that  he 
held  a  junior  mortgage  upon  the  same  premises  which  he  took 


604  CASES  IN  THE  COURT  OF  APPEALS. 

Mathews  v.  Aikin. 

with  full  knowledge  of  the  existence  of  the  present  mortgage  as 
an  incunibrance  upon  the  premises  and  subject  to  it ;  and  that 
before  he  became  the  purchaser  of  the  mortgage  in  question 
through  Orcutt  his  trustee,  he  had  foreclosed  such  junior  mort- 
gage and  become  himself  the  purchaser  of  the  equity  of  redemp- 
tion. At  the  time  therefore  that  he  became  the  assignee  of  the 
present  mortgage  he  was  the  owner  of  the  premises  subject  to 
this  mortgage,  and  held  them  as  a  fund  for  the  payment  of  this 
debt.  (McKinstry  v.  Curtis,  10  Paige,  503 ;  Russel  v.  Alkn, 
id.  249 ;  Cox  v.  Wheeler,  7  id.  248 ;  Tice  v.  Annin,  2  John. 
Ch.  125.)  It  presents  therefore  the  case  of  a  creditor  with  the 
fund  pledged  for  the  payment  of  the  debt  in  his  hand,  under 
circumstances  which  make  it  an  equitable  satisfaction  of  the 
debt,  collecting  the  debt  over  again  out  of  the  surety,  and  then 
refusing  to  surrender  the  fund  to  him.  The  legal  presumption 
is  that  Mathews,  when  he  purchased  the  premises  at  the  sale 
under  his  junior  mortgage,  only  bid  to  the  value  of  the  equity 
of  redemption,  and  he  must  be  adjudged  to  hold  them  subse- 
quently as  a  fund  for  the  satisfaction  of  the  prior  incumbrance. 
And  he  might  have  been  restrained  in  equity  from  proceeding 
to  collect  the  debt  afterwards  from  the  mortgagor,  or  in  case 
the  latter  had  paid  it,  he  would  have  been  entitled  to  have  the 
mortgage  foreclosed  upon  the  premises  for  his  benefit — within 
the  principle  of  the  cases  last  above  cited. 

At  the  time  Abraham  Aikin  was  sued  upon  his  guaranty  he 
was  ignorant  that  the  assignment  of  the  securities  had  been 
made  to  Orcutt  as  a  mere  trustee  for  Mathews,  who  was  already 
the  owner  of  the  premises.  And  unless  I  greatly  mistake  the 
case,  it  exhibits  strong  marks  of  contrivance  on  the  part  of 
Mathews  to  discharge  the  premises  from  the  incumbrance  of 
the  mortgage  at  the  expense  of  Abraham  Aikin.  It  seems  to 
me  quite  clear,  from  the  facts  of  this  case,  that  the  defence 
ought  not  to  prevail. 

But  upon  the  general  doctrine  of  subrogation,  I  agree  fully 
with  the  learned  judge  who  delivered  the  opinion  of  the  supreme 
court,  that  the  right  of  the  surety  to  demand  of  the  creditor 
whose  debt  he  has  paid,  the  securities  he  holds  against  the  prin- 


ALBANY,  DECEMBER,  1848. 


Mathews  v.  Aikin. 


cipal  debtor  and  to  stand  in  his  shoes,  does  not  depend  at  all 
upon  any  request  or  contract  on  the  part  of  the  debtor  with  the 
surety,  but  grows  rather  out  of  the  relations  existing  between 
the  surety  and  the  creditor,  and  is  founded  not  upon  any  con- 
tract, express  or  implied,  but  springs  from  the  most  obvious 
principles  of  natural  justice.  And  if  it  were  true  that  the  surety 
in  such  a  case  as  this  could  maintain  no  action  at  law  against 
his  principal  for  the  money  paid,  I  agree  with  the  supreme 
court  that  it  would  furnish  a  still  stronger  case  for  subrogation. 
A  court  of  equity  would  never  presume  that  the  principal  would 
interpose  such  a  defence.  If  the  creditor  has  insisted  upon  the 
surety's  discharging  his  obligations  and  liabilities  as  such,  and 
fastened  the  character  upon  him  by  a  judgment,  he  cannot, 
after  receiving  from  him  his  debt,  turn  round  and  deny  him  the 
rights  of  a  surety.  The  creditor  must  then  fulfil  his  obligation 
to  the  surety,  and  leave  the  latter  and  his  principal  to  adjust  or 
litigate  their  rights  or  claims  as  they  may  see  fit.  There  is  no 
hardship  in  this.  The  surety  might  have  filed  his  bill  and 
compelled  Mathews  to  collect  the  debt  out  of  his  principal 
through  the  mortgage  before  resorting  to  him.  And  in  such  a 
proceeding  Mathews  might  with  the  same  propriety  have  set  up 
as  a  defence  that  the  surety  was  a  mere  volunteer  and  could 
have  no  redress  against  his  principal,  and  ought  not  to  insist 
upon  his  proceeding  against  the  principal  in  the  first  instance. 
The  injustice  of  the  defence  might  be  a  little  more  apparent  in 
that  case,  but  none  the  more  real.  Had  Abraham  Aikin  owned 
the  mortgage  and  assigned  it  to  Mathews  or  to  his  trustee  with 
his  guaranty  upon  it  at  his  request,  no  one,  I  apprehend,  would 
pretend  that  Aikin,  upon  payment  on  his  guarantee,  would  not 
be  entitled  to  have  the  mortgage  again  from  the  creditor.  How 
is  his  equity  weakened  by  the  consideration  that  to  enable 
Wood  the  mortgagee  to  sell  it  to  Hasbrook  he,  at  the  request 
of  both  Hasbrook  and  Wood,  became  the  guarantor  ?  It  seems 
to  me  to  be  considerably  strengthened  by  the  fact  that  he  de- 
rived no  benefit  from  the  transfer  —  especially  as  a  doubt  has 
been  raised  as  to  his  remedy  over  at  law  for  money  paid  against 
the  mortgagor.  If  Hasbrook  would  have  been  bound  to  sur 


606 


CASES  IN  THE  COURT  OF  APPEALS. 


Langley  v.  Warner. 


render  to  Wood,  had  lie  been  the  guarantor  and  made  pay- 
ment, I  do  not  see  why  he  is  not,  to  the  representative  of  Aikin, 
who  became  guarantor  for  the  benefit  and  at  the  request  of 
both  Wood  and  Hasbrook. 

Decree  affirmed. 


LANGLEY  and  LANGLEY  vs.  WARNER. 

To  render  an  appeal  effectual  for  any  purpose,  an  undertaking  to  pay  costs  and 
damages,  pursuant  to  the  283d  section  of  the  code  of  proceduFe,  must  be  exe- 
cuted. An  undertaking  under  the  284th  section  to  pay  the  sum  recovered  in 
the  court  below  and  all  damages  awarded  on  the  appeal,  although  necessary 
in  order  to  stay  proceedings  in  the  cases  mentioned  in  that  section,  will  not 
sustain  the  appeal. 

The  court  cannot  amend  an  undertaking  without  the  consent  of  tho  suret:3S. 

ON  the  27th  of  September  last  Langley  and  Langley,  as 
plaintiffs,  recovered  a  judgment  against  Warner  in  the  superior 
court  of  the  city  of  New-York  for  $185.19.  On  the  25th  of 
October  following,  Warner  gave  notice  of  an  appeal,  and  an 
undertaking  was  executed  in  pursuance  of  the  284th  section 
of  the  code  of  procedure  ;  but  there  was  no  such  undertaking 
as  is  required  by  the  283d  section  :  and  on  that  ground, 

J.  Edwards,  for  the  respondents,  moved  to  dismiss  the  appeal. 
A.  Dean,  for  the  appellant. 

BRONSON,  J.  To  render  an  appeal  effectual  for  any  purpose, 
there  must  be  an  undertaking  that  the  appellant  will  pay  all 
costs  and  damages  which  may  be  awarded  against  him  on  the 
appeal,  not  exceeding  two  hundred  and  fifty  dollars.  (Code, 
§  283.)  When  the  judgment  is  for  the  payment  of  money,  and 
a  stay  of  execution  is  desired,  the  sureties  must  go  further) 
and  undertake  that  the  appellant  will  pay  the  amount  of  the 
judgment,  so  far  as  it  shall  be  affirmed,  and  all  damages  which 


ALBANY,  DECEMBER,  1848. 


Langley  v.  "Warner. 


shall  be  awarded  against  the  appellant  on  the  appeal.  (§  284.) 
The  undertaking  in  this  case  conforms  to  this  section  ;  and  as 
there  is  an  agreement  to  pay  "  all  damages,"  the  word  "  dam- 
ages "  in  the  preceding  section  is  fully  satisfied,  and  something 
more.  But  there  is  no  agreement  to  pay  costs,  as  the  283d 
section  requires  ;  and  without  that,  the  appeal  was  not  effectual 
for  any  purpose. 

The  appellant  asks  leave  to  amend  the  undertaking.  If  it 
had  been  a  bond,  and  the  obligors  had  applied,  we  should  have 
had  power  to  allow  an  amendment.  (2  R.  S.  556,  §  34.)  But 
the  instrument  is  not  a  bond,  and  the  sureties  have  not  applied. 
The  court  cannot  amend  a  contract  without  the  consent  of  the 
parties  to  it.  The  149th  section  of  the  code  of  procedure  au- 
thorizes the  court  to  amend  pleadings  and  proceedings  in  cer- 
tain specified  cases  ;  but  I  think  it  clear  that  this  case  is  not 
among  the  number.  Whether  upon  common  law  principles 
we  could  not  allow  a  new  undertaking  to  be  filed  nunc  pro 
tune,  I  do  not  think  it  necessary  to  inquire  ;  for  in  my  judg- 
ment a  court  of  review  ought  not  to  encourage  appeals,  and  no 
special  reason  is  shown  for  allowing  an  amendment  in  this  case. 
If  delay  is  not  the  object,  and  the  appellant  really  desires  to 
obtain  the  judgment  of  this  court,  he  can  bring  a  new  appeal. 

Appeal  dismissed.(a) 

(a)  The  motions  in  this  and  the  three  following  cases  were  made  and  decided 
in  January,  1849. 


608  CASES  IN  THE  COURT  OF  APPEALS. 


Rice  v.  Floyd. 


RICE  vs.  FLOYD. 

A  final  judgment  was  rendered  in  the  supreme  court  in  May,  1848,  before  tho 
code  took  effect.  After  the  code  took  effect,  an  appeal  was  brought  according 
to  its  provisions.  Held,  that  the  judgment  could  be  reviewed  only  by  writ  of 
error  according  to  the  old  law.  Appeal  dismissed. 

A.  B.  Ketcham,  for  the  respondent,  moved  to  dismiss  the 
appeal.  Floyd  sued  Rice  before  a  justice  of  the  peace,  in  Au- 
gust, 1847,  and  judgment  was  rendered  for  the  defendant.  On 
certiorari,  the  common  pleas  reversed  the  j udgment.  Rice  then 
brought  a  writ  of  error,  and  the  supreme  court  in  May  last 
affirmed  the  judgment  of  the  C.  P.  Rice  appealed  to  this 
court  in  November  last,  in  the  form  and  manner  prescribed  by 
the  code. 

N.  Hill,  Jr.  for  the  appellant,  opposed  the  motion. 

BRONSON,  J.  The  judgment  of  the  supreme  court  was  ren- 
dered before  the  code  of  procedure  took  effect ;  and  we  have 
already  held,  that  the  review  should  have  been  sought  under 
the  old  law,  and  not  under  the  new,  which  has  nothing  to  do 
with  the  case.  (Mayor  of  N.  Y.  v.  Scliermerhorn,  ante,  p. 
426  ;  Spalding  v.  Kingsland,  id.  429.)  But  as  it  has  been 
suggested  that  those  cases  do  not  necessarily  decide  the  precise 
point  made  by  this  motion,  and  as  it  is  possible  that  we  may 
have  fallen  into  an  error  in  the  first  essay  at  expounding  the 
new  system,  I  have  been  induced  to  re-examine  the  question  ; 
and  am  confirmed  in  the  first  opinion. 

The  271st  section  of  the  code  abolishes  the  old  mode  of  re- 
viewing judgments  and  decrees,  and  substitutes  the  new  ma- 
chinery in  its  place.  But  the  section  relates  only  to  actions 
commenced  after  the  code  took  effect;  (§8;)  which  was  the 
first  day  of  July  last ;  (§  391 ;)  and  this  action  was  both  com- 
menced and  ended  before  that  time. 

This  brings  us  to  the  2d  section  of  the  supplemental  code, 
which  took  effect  at  the  same  time  with  the  code  ;  (§  18  ;)  and 


ALBANY,  DECEMBER,  1848.  609 


Rice  v.  Floyd. 


by  which  the  provisions  of  the  code,  contained  in  the  271st 
and  certain  other  sections,  were  applied  to  future  proceedings 
in  suits  pending  when  the  code  took  effect.  This  suit  was  not 
pending  on  the  first  of  July — it  had  been  terminated  in  the 
preceding  May ;  and  of  course  there  has  been  no  proceeding 
in  the  suit  since  the  first  day  of  July  to  be  reviewed.  Thus 
far  it  is  entirely  clear  that  the  code  says  nothing  about  this 
case.  The  third  subdivision  of  the  2d  section,  which  speaks 
of  the  271st  and  certain  other  sections  in  connection  with  the 
review  of  judgments  and  decrees  "  from  which  no  writ  of  er- 
ror or  appeal  shall  have  been  already  taken,"  furnishes  ground 
for  an  inference  in  favor  of  applying  the  specified  sections  to 
the  review  of  judgments  rendered  before  the  first  of  July,  as 
well  as  those  which  should  be  rendered  after  that  day.  But 
the  third  and  all  the  other  subdivisions  of  the  section,  are  sub- 
ordinate to,  and  qualified  by,  the  general  clause  at  the  begin- 
ning ;  and  if -the  language  was  as  explicit  one  way  in  the  sub- 
division, as  it  is  the  other  way  in  the  general  clause,  the  latter 
would  prevail ;  because  it  is  the  superior  or  most  important 
part  of  the  section.  It  is  the  trunk  on  which  all  the  branches 
depend.  And  the  case  is  still  stronger  when  we  reflect  that 
the  inferior  clause  of  the  section  furnishes  nothing  more  than 
an  inference,  while  the  superior  or  general  clause  has  express 
and  unequivocal  words,  limiting  the  application  of  the  section 
to  proceedings  after  the  first  of  July  in  suits  pending  on  that 
day.  We  think  the  question  has  been  properly  settled,  and 
that  the  code  has  nothing  to  do  with  the  case.  If  a  review  of 
the  judgment  is  desired,  it  must  be  had  by  writ  of  error,  and 
not  by  appeal.  The  llth  section  of  the  code  does  not  stand 
in  the  way,  for  it  only  affects  determinations  "hereafter  made;" 
that  is  to  say,  made  after  the  code  took  effect. 

Appeal  dismissed. 
VOL.  I.  77 


610  CASES  IN  THE  COURT  OP  APPEALS. 


Tilley  v.  Phillips. 


TILLEY  vs.  PHILLIPS. 

o  appeal  will  lie  to  this  court  from  a  decision  of  the  supreme  court  granting  or 
refusing  a  new  trial  on  bill  of  exceptions,  where  such  decision  was  made  after 
the  first  day  of  July,  1848,  when  the  code  of  procedure  took  effect ;  although 
the  suit  may  have  been  commenced  prior  to  that  time. 

PHILLIPS  sued  Tilley  in  the  supreme  court,  and  was  non- 
suited on  the  trial  in  November,  1846.  The  plaintiff  took  a 
bill  of  exceptions,  upon  the  argument  of  which  the  supreme 
court  granted  a  new  trial  in  November  last.  From  that  deci- 
sion the  defendant,  Tilley,  appealed  to  this  court,  by  giving 
notice  of  the  appeal  and  executing  an  undertaking  pursuant 
to  the  code  of  procedure.  (§§  275,  284.)  The  undertaking 
was  not  in  the  form  of  a  bond. 

H.  P.  Hunt,  for  the  respondent,  moved  to  dismiss  the  appeal. 
H.  Z.  Hayner,  for  the  appellant. 

BRONSON,  J.  The  judiciary  act  of  December,  1847,  gave  an 
appeal  from  the  decision  of  the  supreme  court  in  granting  or 
refusing  a  new  trial  on  a  bill  of  exceptions.  (Stat.  1847,  ^>.  639, 
§§  5  to  10.)  If  that  provision  was  still  in  force,  the  defendant 
should  have  followed  it,  and  given  a  bond  on  bringing  the 
appeal.  (§  7.)  But  that  is  not  the  only  difficulty.  The  deci- 
sion appealed  from  was  made  after  the  code  of  procedure  took 
effect,  and  after  the  right  of  appeal  in  such  cases  was  at  an  end. 
The  llth  section  of  the  code  (see  also  §  282)  gives  this  court 
jurisdiction  upon  appeal  in  certain  specified  cases,  "  and  no 
other ;"  and  the  order  appealed  from  is  not  among  the  specified 
cases.  The  provisions  of  the  judiciary  act  of  1847  giving  the 
appeal  are  inconsistent  with  the  llth  section  of  the  code,  and 
are  consequently  repealed.  (Code,  §  388.)  This  point  was,  in 
effect,  decided  at  the  last  November  term.  (G rover  v.  Coon, 
ante,  p.  536.  See  also  Selden  v.  Vermilya,  id.  534.)  The  ap- 


ALBANY,  DECEMBER,  1848. 


Clickman  v.  Clickman. 


peal  must  be  dismissed  ;  but  as  it  was  brought  since  the  code 
took  effect,  we  cannot  give  costs  of  the  motion  to  the  moving 
party.  (Code,  §  270.  And  see  Lyme  v.  Ward,  ante,  p.  531.) 

Appeal  dismissed. 


CLICKMAN  vs.  CLICKMAN. 

Motion  papers  should  be  entitled  in  this  court,  notwithstanding  §  214  of  the  code 
declaring  that  "the  title  of  the  action  shall  not  be  changed  in  consequence  of 
an  appeal."  Papers  not  so  entitled  cannot  be  read. 

J.  J.  Tyler,  for  the  respondent,  moved  to  dismiss  an  appeal. 
Judgment  for  the  plaintiff,  Lawrence  Clickman,  was  entered 
on  the  22d  of  July  last ;  and  on  the  19th  of  August  following, 
the  defendant  gave  notice  of  an  appeal.  The  appellant  had 
not  caused  the  return  to  be  filed ;  nor  had  he  furnished  copies 
of  the  case. 

N.  Hill,  Jun.,  for  the  appellant,  objected  that  the  affidavit  on 
which  the  motion  was  founded,  and  the  notice  of  motion,  both 
mentioned  the  wrong  court.  They  began  thus:  "Supreme 
court.  Lawrence  Clickman  2d,  respondent,  v.  Frederick  Click- 
man, appellant,"  when  they  should  have  stated  the  proceeding 
to  be  in  the  court  of  appeals. 

Tyler,  in  reply,  said  the  entitling  of  the  papers  was  right, 
according  to  the  274th  section  of  the  code  of  procedure. 

BEONSON,  J.  The  section  referred  to  declares,  that  after  an 
appeal  the  parties  shall  be  known  as  appellant  and  respondent; 
"  but  the  title  of  the  action  shall  not  be  changed  in  consequence 
of  the  appeal."  This  goes  only  to  "the  title  of  the  action," 
and  not  to  the  name  or  style  of  the  court ;  and  clearly  these 


612  CASES  IN  THE  COURT  OP  APPEALS. 

Clickman  v.  Clickman. 

papers  should  have  mentioned  the  proceeding  as  being  in  the 
court  of  appeals,  instead  of  the  supreme  court.  True,  the  no- 
tice states  that  a  motion  will  be  made  in  the  court  of  appeals  ; 
but  the  notice  is  given  in  the  supreme  court,  and  as  would  be 
proper  if  the  motion  was  intended  to  be  made  in  that  court. 

The  court  may  amend  pleadings  and  proceedings;  (Code, 
§  149  ;)  but  this  cannot  extend  to  an  affidavit. 

In  certain  cases,  an  affidavit  may  be  good  without  a  title*,  or 
with  a  defective  title.  (§  367.)  But  this  provision  relates,  I 
suppose,  to  the  naming  of  the  parties,  and  not  to  the  name  of 
the  court  in  which  the  matter  is  pending,  or  the  proceeding  is 
to  be  had.  And  besides,  this  section  does  not  help  the  notice. 

The  papers  are  not  sufficient,  and  the  motion  must  be  de- 
nied on  that  ground. 

Motion  denied. 


[Remainder  of  December  cases  in  the  next  volume.] 


INDEX. 


A. 

ABATEMENT. 

Ou  the  death  of  the  plaintiff  in  replevin 
the  action  abates,  and  cannot  be  re- 
vived by  scire  facias.  Burkle  v.  Luce, 

163 

See  CHANCERY. 


ABORTION. 
See  INDICTMENT,  3,  4. 

ACKNOWLEDGMENT. 
See  EVIDENCE,  1,2. 

ACTION. 

A  postmaster,  who  assumes  to  charge 
letter  postage  on  a  newspaper,  in  con- 
sequence of  an  initial  being  on  the 
wrapper,does  not  act  judicially  in  such 
a  sense  as  to  protect  him  from  an  ac- 
tion for  improperly  detaining  such 
newspaper,although  no  fraud  or  malice 
be  alleged  or  proved.  Teall  v.  Fdton, 

537 

See  BILLS  OP  EXCHANGE  AND  PROMISSO- 
RY NOTES,  1. 
FRAUD,  1.  G,  7. 
MONEY  HAD  AND  RECEIVED. 
ANIMALS. 
COVENANT. 


ACTION  ON  STATUTE. 
See  LIMITATION  OF  ACTIONS. 

ACTION  ON  THE  CASE. 

1.  In  an  action  on  the  case  for  an  injury 
to  real  property,  the  plaintiff  must  show 
either  title  or  actual  possession  in  him- 
self at  the  time  the  injury  was  com- 
mitted.    Gardner  v.  Heart,  52S 

2.  And  if  no  one  was  in  the  actual  pos- 
session, it  will  not  be  sufficient  proof 
to  authorize  a  recovery,  to  show  that 
the  premises  were  conveyed  to  the 
plaintiff  at  some  period  prior  to  the  in- 
jury by  a  person  not  shown  to  have 
been'in  possession  or  to  have  title,    id 

See  NUISANCE 
ANIMALS. 


ADYERSE  POSSESSION. 

Where  A.  being  in  possession  of  lands 
and  claiming  to  hold  under  a  contract 
from  the  Holland  Land  Company,  ex- 
ecuted to  B.  an  instrument  purporting 
to  grant  the  absolute  right  to  flow  the 
lands  by  means  of  a  mill  dam,  B. 
knowing  the  manner  in  which  A. 
claimed  to  hold  ;  held,  in  an  action  on 
the  case  for  flowing  the  lands,  that 
such  instrument  was  not  admissible  in 
evidence  to  lay  the  foundation  of  a 
user  adverse  to  the  plaintiff  who  had 
acquired  the  title  of  tho  Holland  Land 
Company.  Pills  \.  Wilder,  525 


614 


INDEX. 


AGENT. 


A  ratification  of  part  of  an  unauthorized 
transaction  of  an  agent,  or  one  who 
assumes  to  act  as  such,  is  a  confinna 
tion  of  the  whole.  The  Farmers 
Loan  and  Trust  Co.  v.  Walworih,  43c 

See  INSURANCE,  1,  2. 
MORTGAGE,  3,  4. 
OFFICE  AND  OFFICER,  4. 

AGREEMENT. 

See  CONTRACT. 

OFFICE  AND  OFFICER,  1,  2,  3. 

ALLEGIANCE. 
See  CRIMINAL  LAW,  1,  2,  3,  4. 

AMBIGUITY. 
See  PAROL  EVIDENCE,  1. 

AMENDMENT. 
See  APPEAL,  16,  24. 

ANIMALS. 

1.  The  owner  of  a  domestic  animal  is 
not  in  general  liable  for  an  injury  com- 
mitted by  such  animal,  unless  it  be 
alleged  and  shown  that  the  defendant 
had  notice  of  its  vicious  propensity. 
Van  Leuven  v.  Lyke,  515 

2.  But  if  the  animal  is  unlawfully  in  the 
close  of  another,  and  commits  the  mis- 
chief there,  the  owner  is  liable  without 
alleging  or  proving  a  scienter.     Per 
JEWETT,  C.  J.  id 

3.  And  in  such  cases  tho  declaration 
should  be  for  breaking  and  entering 
the  close,  and  the  particular  mischief, 
e.  g.  the  killing  of  another  domestic 
animal,  should  be  alleged  in  aggrava- 
tion of  the  trespass.  id 

4.  Tho  declaration  in  a  justice's  court 
alleged  that  the  defendants'  sow  and 
pigs  mangled  and  tore  a  cow  and  calf 
of  the  plaintiff  so  that  they  died.  The 
evidence  tended  to  show  that  the  injury 
was  committed  as  alleged,  and  that  it 
was  done  while  the  sow  and  pigs  were 
trespassing    in   the   plaintiff's   close. 
Held  that  the  plaintiff  could  not  re- 
cover for  the  reason  that  there  was  no 


allegation  or  proof  of  a  scienter,  and  nc 
allegation  of  a  breach  of  the  plaintiff's 
close.  '  id 


APPEAL. 

1.  An  appeal  will  not  lie  from  a  decision 
of  the  court  of  chancery  upon  a  ques- 
tion of  practice  addressed  to  the  dis- 
cretion of  that  court.  Fort  v.  Sard,  43 

2.  Where  a  defendant  in  the  court  of 
chancery  suffered  the  bill  to  be  regu- 
larly taken  as  confessed  by  him,  and 
then,  upon  affidavits  and  papers  excu- 
sing his  default  and  shewing,  as  his 
counsel  claimed,  a  good  defence  on 
the  merits,  moved  that  court  to  set 
aside  the  default  and  for  leave  to  an- 
swer, and  the  chancellor  denied  the 
motion ;  held,  that  no  appeal  would  lie 
in  such  a  case,  and  the  appeal  brought 
by  the  defendant  from  such  a  decision 
was  accordingly  dismissed  on  motion. 

id 

3.  "Where  a  bill  was  regularly  taken  as 
confessed  in  the  court  of  chancery, 
and  the  chancellor,  on  motion  before 
him,  refused  to  open  the  default,  on  the 
ground  that  the  answer  which  the  de- 
fendant sought  to  put  in  was  not  a  good 
defence  to  the  suit  on  the  merits;  held, 
that  the  decision  of  the  chancellor  was 
not  the  subject  of  appeal.    Schermer- 
horn  v.  The  Mohawk  Bank,  125 

.  The  defendant  to  a  bill  in  equity  put 
in  a  demurrer  thereto  which  was  over- 
ruled by  the  vice  chancellor.  On  ap- 
peal to  the  chancellor  the  order  was 
affirmed.  The  defendant  then  appeal- 
ed to  this  court,  and  afterwards  an- 
swered the  bill.  Held,  that  by  answer- 
ing the  appeal  was  waived.  Brady 
v.  Uonnelly,  126 

An  appeal  will  not  lie  to  the  court  of 
appeals  from  a  decision  made  in  the 
supreme  court,  by  one  justice,  at  a 
special  term.  Grade  v.  Iceland,  228 

Where  tho  decree  or  order  appealed 
from  was  made  before  the  1st  of  July, 
1848,  when  the  code  of  procedure  took 
effect,  the  right  of  appeal,  the  time 
within  which  it  must  be  brought,  and 
the  form  of  bringing  and  prosecuting 
it,  depend  upon  tho  law  as  it  stood 
when  the  decision  was  made;  but 
where  the  decision  was  after  that  day, 
whether  in  a  suit  pending  on  that  day, 


INDEX. 


615 


or  commenced  subsequently,  the  righ 
of  appeal,  the  time  within  which  it 
must  be  taken,  and  the  mode  of  pro- 
cedure, are  regulated  by  the  code.  The 
Mayor,  &c.,  of  New-  York  v.  Schermer- 
horn,  423 

.  An  interlocutory  order  was  made  by 
the  supreme  court  in  equity,  and  notice 
thereof  served  19th  May,  1848.  An 
appeal  was  taken  July  24th,  1848 ; 
held,  that  such  appeal,  being  barred 
by  the  lapse  of  fifteen  days,  according 
to  the  statute  in  force  before  the  code 
of  procedure  took  effect,  was  too  late,  id 

.  An  order  of  the  supreme  court  at  gen- 
eral term,  denying  an  application  for  a 
rehearing,  is  interlocutory  within  the 
meaning  of  the  statute  requiring  an 
appeal  to  be  brought  within  fifteen 

id 


9.  An  order  was  made  by  the  chancellor 
on  the  23d  of  June,  1848,  denying  a 
motion  to  vacate  a  decree  and  for  leave 
to  take  proofs.  An  appeal  was  brought 
in  the  mode  prescribed  by  the  code  of 
procedure,  on  the  llth  of  July,  1848  ; 
held,  that  such  appeal  should  have 
been  made  in  the  form  prescribed  by 
the  statute  and  rules  in  force  before 
the  code  of  procedure  took  effect. 
Spaulding  v.  Kingsland,  426 

10.  Held  further,  that  the  code  of  proce- 
dure gives  no  new  right  of  appeal  from 
an  order  made  before  it  took  effect,  and 
that  the  chancellor's  order  in  question, 
being  upon  a  matter  addressed  to  his 
discretion,  was  not  the  subject  of  ap- 
peal, according  to  the  previous  rule  in 
such  cases.  id 

11.  When  an  appeal  under  the  judiciary 
act  of  December,  1847,  (Slat.  1847,  p. 
639,)  was  brought  prior  to  the  1st  day 
of  July,  1848,  from  a  decision  of  the 
supreme  court  granting  a  new  trial  on 
a  bill  of  exceptions ;  held,  that  the  ju- 
risdiction of  the  court  to  hear  and  de- 
termine such  appeal  was  not  taken 
away  by  the  code  of  procedure.     But- 
kr  v.  Miller,  428 

12.  "Whether  appeals  may  still  be  brought 
from  the  decisions  of  the  supreme  court 
on  bills  of  exceptions  in  cases  where 
the  action  was  pending  prior  to  the 
first  day  of  July,  1848,  quere.  id 

13.  It  seems,  that  the  code  does  not  take 
away  a  right  of  appeal  which  had  at- 
tached before  it  went  into  operation,  id 


14.  The  judiciary  act  of  December,  1847, 
(Stat.  of  1847,  p.   639,)   authorizing 
appeals  from  decisions  of  the  supreme 
court  on  bills  of  exceptions,   applies 
only  to  cases  where  the  supreme  court 
grants  or  refuses  a  new  trial  before 
any  judgment  in  the  cause  ;  and  not 
to  cases  where  that  court  reverses  or 
affirms  the  judgment  of  a  subordinate 
court.    Brown  v.  Fargo,  429 

15.  "Where  an  appeal  is  brought  under 
the  code  of  procedure  from  two  orders, 
an  undertaking  in  the  sum  of  $250  id 
not  sufficient,  although  one  of  the  or- 
ders embraced  in  the  appeal  is  made 
at  a  special  term  of  the  supreme  court, 
and  therefore  is  not  appealable  to  this 
court.  Schermerhornv.  Anderson,  430 

16.  The  appellant  allowed  to  amend  his 
undertaking  on  terms.  id 

17.  It  rests  in  the  discretion  of  the  court 
of  original  jurisdiction  to  grant,  con- 
tinue, or  dissolve  a  temporary  injunc- 
tion: and  therefore  a  determination 
upon  such  a  matter  is  not  the  subject' 
of  appeal  to  this  court.     Van  Der  water 
v.  Kelsey,  533 

18.  Under  the  provisions  of  the  code  of 
procedure,  there  is  no-right  of  appeal 
to  this  court  from  an  interlocutory  de- 
termination of  the  supreme  court,  e.  g. 
an  order  dissolving  a  temporary  in- 
junction.    Selden  v.  Vermilya,      534 

19.  An  appeal  will  not  lie  to  this  court 
from  an  order  of  the  supreme  court  in 
general  term,  denying  an  application 
to  rehear  an  order  made  at  a  special 
term,  where  the  order  of  the  special 
term  would  not  be  the  subject  of  appeal 
to  this  court,  if  it  had  been  affirmed  by 
the  general  term.  Marvin  v.  Seymour, 

535 

20.  A  motion  to  compel  a  party  to  appear 
before  a  master  and  submit  to  an  ex- 
amination is  addressed  to  the  discre- 
tion of  the  court  of  original  jurisdiction, 
whose  decision,  therefore,  cannot  be 
reviewed  in  this  court.  id 

21.  "Where  a  writ  of  error  was  pending 
in  the  supreme  court  when  the  code  of 
procedure  took  effect,  and  that  court 
afterwards  rendered  judgment  of  af- 
firmance, there  is  no  right  of  appeal  to 
this  court,  the  determination  of  the  su- 
preme court  being  final  under  the  pro- 
visions of  the  code.  Graver v.  Coon,  536 


616  INDEX. 

22.  A  statute,  which  takes  away  the  right 
to  a  future  appeal  in  an  action  pending 
and  undetermined  when  the  statute 
takes  effect,  is  not  unconstitutional,  id 

23.  To  render  an  appeal  effectual  for  any 
purpose,  an  undertaking  to  pay  costs 
and  damages,  pursuant  to  the  283d 
section  of  the  code  of  procedure,  must 
be  executed.    An  undertaking  under 
the  284th  section  to  pay  the  sura  re- 
covered in  the  court  below  and  all 
damages  awarded  on  the  appeal,  al- 
though necessary  in  order  to  stay  pro- 
ceedings in  the  cases  mentioned  in  that 
section,  will  not  sustain  the  appeal. 
Langky  v.  Warner,  606 

24.  The  court  cannot  amend  an  under- 
taking without  the  consent  of  the  sure- 
ties, id 

25.  A  final  judgment  was  rendered  in  the 
supreme  court  in  May,  1848,  before  the 
code  took  effect.    After  the  code  took 
effect,  an  appeal  was  brought  accord- 
ing to  its  provisions.     Held,  that  the 
judgment  could  be  reviewed  only  by 
writ  of  error  according  to  the  old  law. 
Appeal  dismissed.   Rice  v.  Floyd,  608 

26.  No  appeal  will  lie  to  this  court  from 
a  decision  of  .the  supreme  court  grant- 
ing or  refusing  a  new  trial  on  bill  of 
exceptions,  whore  such  decision  was 
made  after  the  first  day  of  July,  1848, 
when  the  code  of  procedure  took  ef- 
fect ;    although  the  suit   may  have 
been  commenced  prior  to  that  time. 
Tilley  v.  Phillips,  610 

See  COSTS,  1. 

CONSTITUTIONAL  LAW,  3. 


APPOINTMENT. 
See  HUSBAND  AND  \VIFK.  1.  4,  5,  6. 

/ 

ARBITRAMENT  AND  AWARD. 

See  CONTRACT,  2. 


ASSIGNMENT. 

1.  An  assignment  by  a  debtor,  who  is  in- 
solvent, of  hia  property  in  trust  for  the 
benefit  of  a  single  creditor  or  surety, 
containing  no  provision  for  the  benefit 
of  creditors  penenilly.  is  not  \Vithinl 
the  act  of  roiirrrrss  \v!ik  h  ilcclnres  the! 


United  States  entitled  to  priority  o: 
payment,  "  in  cases  where  a  debtor 
not  having  sufficient  property  to  pay 
all  his  debts  shall  make  a  voluntary  as- 
signment thereof  for  the  benefit  of  his 
creditors."  Bouchavd  v.  Dias,  201 

2.  Accordingly,  where  a  debtor  made 
such  an  assignment  of  his  property, 
and  his  surety  in  certain  custom  house 
bonds  filed  a  bill,  claiming  that  the 
United  States  had  acquired  a  right  to 
be  first  paid,  and  to  be  subrogated  to 
that  right  on  the  grouned  that  as  such 
surety  he  had  been  compelled  to  pay 
the  bonds ;  held,  that  the  bill  could  no't 
be  sustained.  id 

See  NON-IMPRISONMENT  ACT. 


ATTORNEY. 

"Where  the  attorney  for  the  plaintiff  in 
error  removed  from  the  state,  and  no- 
tice had  been  given  to  the  party  to  ap- 
point another  attorney  pursuant  to  the 
statute  (2  R  S.  287,  §  67,)  held  nev- 
ertheless, that  a  motion  to  quash  the 
writ  of  error  could  not  be  made,  with- 
out notice  thereof  to  the  plaintiff  iu 
error.  Jewell  v.  Schouten,  241 


B 

BAILMENT. 
See  PLEDGE. 


BANKRUPTCY. 

1 .  The  bankruptcy  of  the  husband,  al- 
though it  extinguishes  the  debt  as  to 
him,  and  suspends  the  legal  remedy  UM 
to  her  during  the  coverture,  does  not 
afford  any  ground   for  proceeding  in 
equity  to  charge  her  separate  estate. 
Vanderheyden  v.  MaUory,  45'2 

2.  The  creditor  in  such  a  case  may  prove 
his  debt  and  share  in  the  distribution 
of  the  bankrupt's  estate.  id 

3.  Where  the  form  of  the  pleadings  is 
such  that  a  party  has  had  no  opportu- 
nity of  setting  up  fraud  in  avoidance 
of  a.  bankrupt's  discharge,  he  may  give 
the  fraud  in  evidence  on  the  trial  with- 
out having  pleaded  it.     Itnckmart   v 


INDEX. 


617 


4.  Accordingly,  where  a  party  who  was 
sued  in  trespass  for  taking  goods, 
pleaded  not  guilty  and  gave  notice  of 
justification  under  a  judgment  and  ex- 
ecution against  the  plaintiff,  and  on  the 
trial  the  plaintiff  proved  his  discharge 
as  a  bankrupt  obtained  after  the  judg- 
ment was  rendered ;  field,  that  tho  de- 
fendant might  give  fraud  in  evidence 
so  as  to  avoid  the  discharge.  id 

5.  In  pleading  a  bankrupt's  discharge, 
the  facts  on  whichjurisdiction  depends 
must  be  averred ;  but  when  the  dis- 
charge is  offered  in  evidence,  jurisdic- 
tion will  be  presumed  until  the  con- 
trary appears.     Per  BROXSON,  J.     id 

Q.  A.  valid  discharge  in  bankruptcy  ex- 
tinguishes a  judgment,  so  that  the 
creditor  who  seizes  the  bankrupt's 
goods  by  virtue  of  the  judgment  and 
execution  thereon,  may  be  charged  as 
a  trespasser,  even  if  he  have  no  know- 
ledge of  the  discharge.  Per  BRONSON, 
J.  id 

7.  But  otherwise  as  to  the  officer  making 
the  levy.  He  is  protected  by  the  pro- 
cess regular  on  its  face.  id 

See  HUSBAND  AND  WIFE,  4,  8. 


BETTING  AND  GAMING. 

1.  The  losing  party  in  an  illegal  bet  or 
wager  may  recover  from  the  stakehold- 
er the  sum  deposited  by  him,  although 
the  stakeholder  by  his  direction,  given 
immediately  after  the  wager  is  deter- 
mined, has  paid  the  money  over  to  the 
winner.     Ruckman  v.  Pitcher,       392 

2.  An  action  to  recover  money  deposited 
on  an  illegal  wager  may  be  main- 
tained without  demand.  id 

3.  A  wager  upon  the  result  of  a  horse 
race  in  Queens  county  is  unlawful, 
notwithstanding  the  statutes   autho- 
rizing and  regulating  the  racintr  of 


horses  in  that  county. 


id 


4.  A  party  who  stakes  a  sum  of  money 
on  an  illegal  wager  may  recover  so 
much  thereof  as  belongs  to  himself 
without  joining  in  the  action  other 
persons  who  contributed  specific  por- 
tions of  the  fund.  id 

VOL.  I.  7 


BILL  OF  EXCEPTIONS. 

A  bill  of  exceptions  will  not  lie  to  review 
the  exercise  of  the  discretion  of  a  cir- 
cuit judge  on  the  trial  of  a  cause,  in 
disregarding  a  variance  between  the 
declaration  and  the  proof.  Conover  v. 
Insurance  Company  of  Albany.  290 


BILLS  OF  EXCHANGE  AND 
PROMISSORY  NOTES. 

1.  One  of  two  partners  drew,  in  the  name 
of  his  firm,  a  bill  upon  the  plaintiff, 
payable  to  the  order  of  B.,  and  having 
forged  the  name  of  B.  as  endorser  upon 
the  bill,  presented  it  to  the  Bank  of 
Central  New- York,  had  it  discounted 
in  the  regular  course  of  business,  and 
applied  the  proceeds  to  his  private 
use.  The  cashier  of  the  bank  endorsed 
the  bill  and  transmitted  it  to  the  de- 
fendants for  collection,  and  the  plain- 
tiff accepted  and  paid  it  to  the  defend- 
ants.     After  discovering    that    the 
payee's  endorsement  was  forged,  he 
sued  to  recover  back  the  money  so 
paid.  Held,  that  the  action  could  not 
be  maintained.    Coggill  v.  The  Ameri- 
can Exchange  Bank,  IK! 

2.  B.  the  payee,  being  a  stranger  to  the 
transaction,  and  having  no  interest  in 
tho  draft,  his  endorsement  was  not 
necessary  in  order  to  transfer  a  good 
title  to  the  party  discounting  the  pa- 
per, or  to  entitle  such  party  to  receive 
the  money  upon  it.  id 

3.  The  plaintiff,  having  accepted    and 
paid  the  bill  under  these  circumstan- 
ces, would  have  a  right  to  charge  the 
amount  against  the  funds  of  tho  draw- 
ers in  his  hands,  or,  if  there  were 
none,  to  maintain  an  action  against 
them  for  money  paid  to  their  use.    id 

•1.  The  case  of  The  Canal  Bank  v.  T),° 
Bank  of  Albany,  (1  Hill,  287,)  com- 
mented upon  and  approved ;  but  dis- 
tinguished from  this  case,  inasmuch  ;w 
there,  tho  endorser  whoso  name  w:is 
forged,  was  the  owner  of  the  draft,  and 
the  only  person  entitled  to  receive  the 
money  upon  it.  Per  BROXSOX,  J.  id 

5.  It  seems  that  the  drawers,  after  hav- 
ing passed  the  draft  with  the  payee's 
name  endorsed  upon  it.  and  received 
the  avails  of  it,  in  an  action  against 
them  would  be  estopped  from  contro- 
vertingthe  genuineness  of  the  endorse- 
ment, id 


618 


INDEX. 


6.  Where  a  bill  is  put  in  circulation  by 
the  drawer,  with  the  endorsement  of 
the  payee  forged  upon  it,  a  bona  fide 
holder  may  treat  it  as  a  bill  payable 
to  bearer.     Per  BRONSOX,  J.  id 

7.  In  a  strict  and  technical  sense,  the 
term  protest,  when  used  in  reference  to 
commercial  paper,  means  only  the  for- 
mal declaration  drawn  up  and  signed 
by  a  notary,  but,  in  a  popular  sense 
and  as  ased  among  men  of  business, 
it  includes  all  the  steps  necessary  to 
charge  an  endorser.     Coddington  v. 
Davis,  186 

8.  Therefore,  where  an  endorser  of  a 
note,  before  its  maturity,  wrote  to  the 
holder,  saying :    "  Please  not  protest 
T.  B.  C.'s  note  due,  &c.  &c.,  and  I 
will  waive  the  necessity  of  the  protest 
thereof,"  held,  that  this  dispensed  with 
a  demand  of  the  maker  and  notice  to 
the  endorser.  id 

9.  A  demand  of  payment  from  the  ma- 
ker of  a  note,  and  notice  to  the  en- 
dorser, are  sufficient  to  charge  the  en- 
dorser, without  a  technical  and  for- 
mal protest.  id 

10.  Where  a  note,  specifying  no  place 
of  payment,  was  made  and  endorsed 
in  the  state  of  New-York,  but  the 
maker  and  endorser  resided  in  a  for- 
eign country,  and  continued  to  reside 
there  when  the  note  fell  due,  their 
place  of  residence  being  known  to  the 
payee  and  holder,  both  when  the  note 
was  given  and  when  it  matured  ;  held, 
that  presentment  of  the  note  to  the 
maker,  demand  of  payment  from  him, 
and  notice    to    the    endorser,  were 
necessary  in  order  to  charge  the  en- 
dorser.    Spies -v.  Gilnwre.  321 

11.  F.  being  indebted  to  S.,  in  order  to 
obtain  further  time  for  payment,  exe- 
cuted to  him  a  note  payable  to  the 
order  of  S.  Before  the  note  was  deliv- 
ered to  8.,  G.  endorsed  it.     The  pur- 
pose for  which  the  note  was  made 
being  known  to  him,  and  it  being  part 
of  the  arrangement  that  he  should 
become  security  for  F.    Held,  that  G. 
was  liable  only  as  endorser,  and  not 
as  a  joint  maker,  or  as  a  guarantor,  id 

1 2.  The  case  of  Ifall  v.  Ntwcomb,  in  er- 
ror. (7  //('//,  41  G.)  referred  to,  and  the 
doctrine  there  established,  reaffirmed. 

id 

13.  Due  presentment  fur  payment  and 


notice  of  non-payment  are  conditions 
precedent  to  the  liability  of  an  endor- 
ser of  a  promissory  note.  Cayuga 
County  Bank  v.  Warden,  41IJ 

14.  No  precise  form  of  words  is  neces- 
sary in  giving  notice.    It  is  sufficient 
if  the  language   used  is  such  as  to 
convoy,  either  in  express  terms  or  by 
necessary  implication,  notice  to  the 
endorser  of  the  identity  of  the  note, 
and  that  payment,  on  due  present- 
ment, has  been  neglected  or  refused 
by  the  maker.  id 

15.  Where  a  notice  misdescribes  the  note 
in  some  particular,  it  may  be  shown 
in  aid  of  the  defect  that  there  was  no 
other  note  in  existence  to  which  the 
description  contained  in  the    notice 
could  be  applied.  id 

16.  A  notice  of  protest  need  not  in  terms 
state  that  a  demand  has  been  made 
upon  the  maker.     It  is  sufficient  if  it 
state  that  the  note  has  been  protested 
for  non-payment.  id 

17.  The  defendants  were  endorsers  upon 
a  note  for  $600,  payable  to  their  joint 
order  at  the  plaintiffs'  bank.    The  no- 
tices of  protest  were  dated  at  the  bank 
on  the  last  day  of  grace,  and  were  ad- 
dressed to  the  defendants  severally. 
They  had  the   character   and  figures 
"$GOO"  in  the  margin.     In  the  body 
they  ran  thus :  "  Sir,  take  notice  that 
>S.  Warden's  note  for  three  hundred 
dollars,  payable  at  this  bank,  endorsed 
by  you,  was   this  evening  protested 
for  non-payment,  and  the  holders  look 
to  you  for  the  payment  thereof."     It 
was  proved  that  there  was  no  other 
note  in  the  bank  made  by  S.  Warden 
and  endorsed  by  the  defendants.  Held, 
that   the   notice    was    sufficient    to 
charge  the  endorsers.  id 

See  INSURANCE,  5,  6,  7. 


BONDS. 

See  OFFICE  AND  OFFICER,  1,  2,  8. 
INDEMNITY. 


0 

CERTIORARI. 
See  LANDLORD  AND  TKNANT,  4. 


INDEX. 


619 


CHALLENGE  OF  JUROR. 
See  JUROR. 

CHANCERY. 

Where  a  party,  claiming  an  estate  by 
inheritance,  files  a  bill  for  the  purpose 
of  setting  aside  a  will,  and  dies  pend- 
ing the  suit,  his  devisee  may  file  an 
original  bill  in  the  nature  of  a  bill  of 
revivor  and  supplement,  and  if  his 
right  as  devisee  be  admitted  or  estab- 
lished, he  will  be  entitled  to  the  bene- 
fit of  the  proceediags  in  the  original 
suit.  Brady  v.  McCosker,  214 

See  APPEAL. 

PLEADINGS  IN  EQUITY. 
PARTIES  TO  ACTIONS,  1. 
MONEY  HAD  AND  RECEIVED. 
COVENANT,  3. 
MORTGAGE,  1,  2,  3,  4. 
MARSHALLING  SECURITIES. 
HUSBAND  AND  WIFE,  1,  2,  4,  5,  6, 
9, 10,  11. 


CITIES  AND  VILLAGES. 
See  SALE  FOR  TAXES  AND  ASSESSMENTS. 

CLERK  IN  CHANCERY. 
See  MORTGAGE,  1,  2,  3,  4. 

CONSIDERATION. 

See  CONTRACT,  3,  4,  5. 
INSURANCE,  7. 
COVENANT,  3. 

CONSTITUTIONAL  LAW. 

1.  Under  the  new  constitution  of  this 
state,  it  is  the  right  and  the  duty  of  a 
judge  of  the  court  of  appeals  to  take 
part  in   the  determination  of  causes 
brought  up  for  review  from  a  subordi- 
nate court,  of  which  he  was  a  mem- 
ber, and  in  the  decision  of  which  he 
took  part  in  the  court  below.     Pierce 
v.  Ddamater,  17 

2.  The  judgment  of  the  supreme  court  in 
this  case,  determining  that  the  act  to 
extend  the  exempt  ion  of  personal  prop- 


erty from  sale  under  execution,  passed 
April  11,  1842,  is  unconstitutional  and 
void  as  to  debts  contracted  before  its 
passage,  affirmed.  Danks  v.  Quack- 
enbush,  129 

3.  A  statute  which  takes  away  the  right 
to  a  future  appeal  in  an  action  pend- 
ing and  undetermined  when  the  stat- 
ute takes  effect,  is  not  unconstitu- 
tional. Graver  v.  Coon,  536 


CONSTRUCTION   OF    INSTRU- 
MENTS. 

1.  Where  two  instruments  are  executed 
on  different  days,  relating  to  the  same 
subject  matter,  and  the  one  last  exe- 
cuted refers  to  and  is  based  upon  the 
former  one,  in  arriving  at  the  inten- 
tion of  the  parties  in  the  latter  instru- 
ment, both  should  be  read  and  con- 
strued   together;    and    the    general 
words,  used  in   the  last,   should  be 
restricted  so  as  to  conform  to  the  in- 
tention of  the  parties  as  derived  from 
an  examination  of  both  instruments. 
Coddington  v.  Davis,  186 

2.  Accordingly,  where  the  maker  of  a 
note  made  an  assignment  to  one  of  the 
holders  for  the  benefit  of  his  creditors, 
in  which  the  endorser  was  named  and 
preferred  as  a  creditor  to  the  amount 
of  the   note,    and   the   holders  were 
named  and  preferred  as  creditors  on 
another  account,  but  were  nowhere 
set  down  as  creditors  in  respect  to  the 
note,  and  the  holders,  in  conjunction 
with  other  creditors,  afterwards  exe- 
cuted to  the  maker  an  instrument  re- 
ferring to  the  assignment,  and  agree- 
ing, in  consideration  thereof  and  of  one 
dollar,  to  discharge  the  maker  from 
all  claims  and  demands   existing  in 
their  favor  respectively  against  him, 
over  and  above  what  they  might  real- 
ize under  the  assignment,  on  his  agree- 
ing at  the  same  time  to  pay  the  bal- 
ance of  their  debts  in  seveu  years,  and. 
the  maker  at  the  same  time  gave  to  the 
holders  his   written   promise  to  pay 
such  balance   in  seven  years ;    held, 
that  the  claim  of  the  holders  to  recover 
the  note  of  the  maker  was  not  dis- 
charged or  suspended,  the  instrument 
being  regarded  as  only  applicable  to 
their  other  demand  against  the  maker; 
and  therefore  farther  h?ld,  that  their 
right  to  recover  against  the  endorser 
was    not    ati'ected    by   such    instru- 
ment, id 


620 


INDEX. 


See  DEED. 

LEGACY  AND  LEGATEE,  3,  4. 
LANDLORD  AND  TENANT,  3. 
CONTRACT,  1,  2. 


CONTRACT. 

1.  S.  contracted  with  the  corporation  of 
the  city  of  New- York  to  furnish  all  the 
materials  and  labor  necessary  to  com- ' 
pleto  the  excavation,  re-filling,  and  re- 
paving  of  a  trench  of  specified  dimen- 
sions for  water  pipes.  The  corporation 
agreed  to  pay,  as  a  "  compensation  for 
auch  excavation,  re-filling,  and  re-pav- 
ing," as  follows  :    "For  executing  the 
digging"  and  re-filling,  seven  cents  per  \ 
cubic  yard ;    for  re-paving,  &c.,  four  I 
cents  per  square  yard.     A  considera- 
ble portion  of  the  trench  was  exca- 
vated through  hardpan,  and  this  was ! 
proved  to  be  worth  75  cents  per  cubic  | 
yard.     Another  portion  was  through  ! 
rock,  worth  $1.00  per  cubic  yard.    It 
was  also  shown  that  seven  cents  (the 
contract  price)  per  yard  was  the  low- 
est price  lor  excavating  common  earth. 
JMd,  nevertheless,  that  S.  could  re- 
cover nothing   beyond  the   contract 
price,  and  that  extrinsic  evidence  was 
not  admissible  to  prove  the  value  of 
excavating  hardpan  and  rock.     Sher- 
man  v.    The    Mayor,    &c.,   of   New- 
York,  31G 

2.  The  contract  provided  that,  as  the 
work  progressed,  the  engineer  of  the 
corporation  should,  upon  the  request 
of  the  contractor,  make  estimates  of 
the  work  done,  which  estimates  were 
to  be  paid  on  tho  next  pay  day,  less 
ten  per  cent ;  also  that  when  the  work 
was  done,  tho  engineer  should  make 
a  final  estimate  of  all  moneys  due  lo 
tlic  contractor,  and  then  the  whole  \ 
to  be  paid.  The  engineer  accordingly  \ 
made  a  final  estimate.  It  seems,  how- 
over,  competent  in  such  a  case,  to  re- 
sort to  other  proof  of  the  amount  of 
the  work. 


X  The  endowment  of  a  literary  institu- 
tion is  not  a  sufficient  consideration  to 
uphold  a  subscription  to  a  fund  de- 
signed for  that  object.  Trust*  >•*  of 
Hamilton  Colleger,  Stewart.  581 

4.  And  although  there  is  annexed  to  the 
subscription  a  condition  that  the  sub- 
scribers are  not  to  be  bound  unless  a 
given  amount  shall  be  raised,  no  re- 


quest can  be  implied  therefrom  against 
tho  subscribers  that  tho  institution 
shall  perform  tho  services  and  incur 
the  expenses  necessary  to  fill  up  tho 
subscription.  id 

.  Accordingly,  where  tho  defendant  sub- 
scribed $800  to  a  fund  for  the  payment 
of  the  salaries  of  tho  officers  of  Hamil- 
ton College,  and  a  condition  was  an- 
nexed that  the  subscribers  were  not 
to  bo  bound  unless  tho  aggregate 
amount  of  subscriptions  and  contribu- 
tions should  be  $50,000;  held,  that 
there  was  no  consideration  for  the  un- 
dertaking and  that  no  action  would 
lio  upon  it,  although  there  was  evi- 
dence tending  to  show  that  the  whole 
amount  had  been  subscribed  or  con- 
tributed according  to  tho  terms  of  tho 
condition.  id 

See  CONSTRUCTION  OP  INSTRUMENTS. 
OFFICE  AND  OFFICER,  1,  2,  3. 
INDEMNITY. 
WITNESS,  1,  2. 


CONVEYANCE. 
See  DEED. 

CORPORATIONS. 

Where  tho  charter  of  an  incorporated 
company  provides  that  tho  stockhold- 
ers shall  bo  liable  for  its  debts,  and 
that  a  creditor  may,  after  judgment 
obtained  against  the  corporation,  and 
execution   returned   unsatisfied,  sue 
a  iv  stockholder  and  recover  his  do- 
i)  and,  such  stockholders  are  liable  in 
a  i   original   and  primary  sense,  liko 
partners  or  members  of  an  unineorpo- 
led  association,  and  their  liability  U 
>t  created  by  tho  statute  of  incorpo- 
tion.     Corning  v.  Me  Cullough,       47 


2.  It  seems,  that  on  the  dissolution  of  a 
corporation,  the  title  to  real  estate 
held  by  it  reverts  back  to  it«  original 
grantor  and  his  heirs,  unless  there  is 
some  provision  in  the  charter,  orsomo 
other  statutory  provision  to  avert  that 
consequence.  Ui/igham  v.  Weider- 
u-ax,  500 

See  LIMITATION"  OF  ACTIONS,  1. 

SALK  FOR  TAXES  AND  ASSESSMENTS. 
INSURANCE,  1,  '2. 
JURISDICTION,  .>,  4,  5. 


INDEX. 


621 


COSTS. 

1.  Costs  on  an  appeal  to  the  court  of  ap- 
peals are  in  the  discretion   of  that 
court,  and  when  the  decree  of  the 
court  below  is  reversed,  it  should  be 
without  costs.    Bou£haudv.  Lias,  201 

2.  A  defendant  in  error,  who  was  prose- 
cuted in  the  court  below  for  an  act 
done  by  him  as  a  public  officer,  is  en- 
titled to  double  costs  in  error,  on  the 
affirmance  of  the  judgment.     Burkle 
v.  Luce,  239 

3.  Where  the  action  was  commenced  be- 
fore the  code  of  procedure  took  effect, 
this  court  may  grant  costs  on  a  special 
motion ;  and  the  amount  is  to  be  set- 
tled by  taxation.    Lyme  v.  Ward,  531 

4.  But  where  the  suit  is  commenced  af- 
ter the  code  took  effect,  this  court 
cannot  grant  costs  to  the  party  who 
makes  a  special  motion.  id 

See  PARTIES,  1. 
DEFAULT. 


COURT  OF  APPEALS. 
See  CONSTITUTIONAL  LAW,  1. 


COURT   OF  A  JUSTICE    OF   THE 
PEACE. 

The  defendant,  in  a  justice's  court, 
claimed  the  property  by  virtue  of  a 
personal  mortgage,  which  was  read  in 
evidence  without  objection.  It  also  ap- 
peared that  the  mortgage  had  been 
filed ;  but  the  return  of  the  justice  did 
not  show  that  there  was  any  evidence 
that  such  filing  was  ill  the  town  where 
the  mortgagor  resided,  or  where  the 
property  was  situated,  as  required  by 
the  statute,  (Laws  0/1833,  chap.  279,) 
nor  did  it  appear,  from  the  return, 
that  the  plaintiff',  who  claimed  the 
property  as  purchaser  under  an  exe- 
cution against  the  mortgagor,  made 
any  objection  on  the  ground  of  such 
defect  in  the  evidence ;  held,  that  such 
an  objection  could  not  be  taken  in  the 
court  of  common  pleas  on  certiorari. 
Jtncks  v.  Smith.  90 


COURTS  OF  THE  UNITED 

STATES. 

Sea  JURISDICTION.  6,  7,  8. 


COVENANT. 

1.  The  covenant  of  seisin,  if  the  grantor 
has  no  title,  is  broken  as  soon  as  the 
deed  is  executed,  and  the  grantee's 
right  of  action  upon  such  covenant 
becomes  immediately  perfect.     Bing- 
ham  v.  Weiderwax,  509 

2.  Nor  is  it  any  defence,  either  at  law  or 
in  equity,  to  such  an  action,  that  the 
premises  have  been  sold  and  the  gran- 
tee  dispossessed  under   a  mortgage 
which  the  grantee  assumed  to  pay. 
and  subject  to  which  he  took  the  con- 
veyance, id 

3.  In  the  action  upon  the  covenant  of 
seisin,  for  the  purpose  of  ascertaining 
the  measure  of  damages,  the  true  con- 
sideration, and  the  fact  that  only  part 
of  it  has  been  paid,  may  be  shown  by 
parol,  although  the  deed  expresses  a 
different  consideration,  and  acknowl- 
edges that  the  whole  of  it  has  been 
paid ;  and  there  is  therefore  no  occa- 
sion, in  such  a  case,  to  resort  to  a 
court  of  equity  for  relief.  id 

4.  The  covenant  of  seisin  is  broken  if 
the  grantor  at  the  time  of  the  convey- 
ance do  not  own  such  things  affixed 
to  the  freehold  as  would  pass  to  the 
grantee  by  a  conveyance  of  the  land 
itself.     Mott  v.  Palmer,  564 

5.  Accordingly  where  the  grantor  cov- 
enanted  in  the  conveyance   that  he 
was  the  lawful  owner  of  the  premises 
and  seised  of  a  good  and  indefeasible 
inheritance  therein,  and  a  quantity  of 
rails  erected  into  fence  standing  on  the 
premises  was  the  property  of  another 
person  by  virtue  of  a  previous  agree- 
ment made  with  the  grantor;   held, 
that  the  grantee  might  maintain  an 
action  against  the  grantor  for  a  breach 
of  the  covenant  of  seism.  id 


CRIMINAL  LAW. 

A.  was  indicted  in  the  city  of  New- 
York  for  obtaining  money  from  a  firm 
of  commission  merchants,  in  that  city, 
by  exhibiting  to  them  a  fictitious  re- 
ceipt signed  by  a  forwarder  in  Ohio, 
falsely  acknowledging  the  delivery  to 
him  of  a  quantity  of  produce  for  the 
use  of  and  subject  to  the  order  of  the 
firm.  The  defendant  pleaded  that  he 
was  a  natural  born  citizen  of  Ohio. 
had  always  resided  there,  and  had 
never  been  within  the  state  of  Now 


622 


INDEX. 


York;  that  the  receipt  was  drawn 
and  signed  in  Ohio,  and  the  offence 
waa  committed  by  the  receipt  being 
presented  to  the  firm  in  New- York, 
by  an  innocent  agent  of  the  defendant, 
employed  by  him  while  he  was  a  res- 
ident of  and  actually  within  the  state 
of  Ohio  ;  held,  that  the  plea  was  bad, 
and  that  the  defendant  was  properly 
indicted  in  the  city  of  New-York. 
Adams  v.  The  People,  173 

2.  "Where  an  offence  is  committed  within 
this  state  by  means  of  an  innocent 
agent,  the  employer  is  guilty  as  a  prin- 
cipal, though   he  did  no  act  in  this 
state,  and  was  at  the  time  the  offence 
was  committed,  in  another  state,     id 

3.  In  such  case  the  courts  of  this  state 
have  jurisdiction  of  the  offence,  and  if 
the  offender  comes  within  the  limits 
of  the  state,  they  have  also  jurisdic- 
tion of  his  person,  and  he  may  be  ar- 
rested and  brought  to  trial.  id 

•1.  Where  an  offence  is  committed  with- 
in this  state,  whether  the  offender  be 
at  the  time  within  the  state,  or  be  with- 
out the  state  and  perpetrates  the 
crime  by  means  of  an  innocent  agent, 
it  is  no  answer  to  an  indictment  that 
the  offender  owes  allegiance  to  an- 
other state  or  sovereignty.  id 

5.  Under  the  revised  statutes  (1  R.  S. 
665,  §  28)  it  is  a  misdemeanor  to  pub- 
lish in  this  state  an  account  of  a  lottery 
to  be  drawn  in  another  state  or  territo- 
ry.although  such  lottery  be  authorized 
by  the  laws  of  the  place  where  it  is  to 
be  drawn.  Charles  v.  The  People,  180 

G.  Accordingly  held  that  a  demurrer  to 
an  indictment  which  charged  the  de- 
fendant with  publishing,  in  the  city  of 
New- York,  an  account  of  a  lottery  to 
be  drawn  in  the  district  of  Columbia, 
was  not  well  taken.  id 

See  INDICTMENT. 


CUSTOM  HOUSE. 
See  MONEY  HAD  AND  RECEIVED. 

D 

DAMAGES. 

See  FuAri).  2.  4,  5. 


DEBTOR  AND  CREDITOR. 

See  NON-IMPRISONMENT  ACT. 
ASSIGNMENT. 


DECREE. 

See  APPEAL,  8. 
> 

DEED. 

1.  Where  a  deed  given  in  1829  contained 
a  clause  by  which  it  was  made  subject 
to  a  reservation  contained  in  a  convey- 
ance of  the  same  premises  given  in 
1793,  between  other  parties,  and  the 
question  was  upon  the  construction  of 
the  deed  of  1829;  held,  that  it  was  to 
be  construed  in  the  same  manner,  as 
though  the  language  of  the  reservation 
as  contained  in  the  original  deed  were 
incorporated  into  and  formed  a  part 
of  the  one  in  question.  French  v.  Car- 
hart,  96 

2.  In  the  construction  of  deeds  and  other 
instruments  the  intention  of  the  parties 
is  to  govern,  and  where  the  language 
used  is  susceptible  of  more  than  one 
interpretation,  courts  will  look  at  the 
surrounding    circumstances    existing 
when  the  contract  is  entered  into,  such 
as  the  situation  of  the  parties,  and  of 
the  subject  matter  of  the  contract,  id 

3.  A  conveyance  of  real  estate  contained 
a  clause  referring  to  and  adopting  the 
reservations  and  conditions  in  a  former 
conveyance  of  the  same  premises,  and 
the  reservation  in  such  former  convey- 
ance was  in  these  words:  "  Saving  and 
always  excepting  to  the  said  parties 
of  the  first  part,  their  heirs  and  as- 
signs, out  of  this  present  grunt  and 
release,  all  mines  and  minerals,  that 
are  now,  or  may  bo  found  within  the 
premises  hereby  granted  and  released, 
and    all    the  creeks,   kills,   runs   and 
streams  of  water,  and  so  much  ground 
within  the  same  premises,   as  they, 
the  said  parties  of  the  first  part,  their 
heirs  and  assigns  may  think  requisite 
and  appropriate  at  any  time  hereaf- 
ter, for  the  erection  of  the  works  and 
buildings   whatsoever,   for    the   con- 
venient working  of  the  said   mines, 
and  also  all  such  wood,  firewood  atnl 
timber    as    they    may    think     proprr 
to  use  in  building,  repairing,  airom 
modating.     and     working     the     sai-1 
niiiu's, with  liljfrty  to  them,  their  heir*, 
and  assigns,  and  their  and  each  of  their 


INDEX. 


623 


servants  to  dig  through  and  use  the 
ground,  for  either  of  the  said  purposes, 
and  to  pass  and  repass  through  the 
premises,  with  their  and  each  of  their 
horses  and  cattle,  carriages  and  ser- 
vants, and  to  layout  roads  therefor," — 
and  the  habendum  clause  contained  a 
condition  that  the  grantee,  his  heirs, 
&c.,  should  not  erect,  or  permit  to  be 
erected,  any  mill  or  mill  dam  upon  the 
stream  of  water  on  the  premises  grant- 
ed ;  held,  that  the  reservation  of  the 
stream  was  for  all  purposes  and  not  for 
mining  purposes  merely.  id 

4.  And  in  aid  of  this  construction ;  held 
also,  that  it  was  proper  to  consider  the 
evidence,  which  showed  that  when  the 
deed  in  question  was  given,  the  grantor 
owned  the  premises  immediately  be- 
low, on  which  were  situated  and  used 
a  mill  and  dam,  which  set  the  water 
back  onto  the  land  conveyed,  and  that 
the  grantee  knew  of  the  existence  of 
such  mill  and  dam,  and  of  the  manner 
in  which  the  stream  was  affected  by 
their  use.  id 

5.  Held  also,  that  the  reservation  was  not 
merely  of  the  natural  bed  of  the  stream, 
but  of  a  right  to  use  the  stream  in  the 
same  manner,  and  to  set  back  the  wa- 
ter to  the  same  extent,  as  when  the 
grant  was  made.  id 

6.  Whatever  is  necessary  to  the  fair  and 
reasonable  use  of  the  thing  excepted,is 
also  reserved  as  incident  to  the  excep- 
tion, id 

7.  A  reservation,  in  a  deed,  of  a  right  or 
privilege  should  be  construed  in  the 
same  way  as  a  grant  by  the  owner  of 
the  soil,  of  a  similar  right  or  privilege. 
Per  JEWETT,  C.  J.  id 

See  EVIDENCE,  1,  2. 
COVENANT. 
DOWER. 
ESTOPPEL. 
PAKOL  EVIDENCE. 


DEFAULT. 

Where  a  default  is  regularly  taken  in  a 
calendar  cause,  the  court  will  impose 
the  payment  of  counsel  fee,  besides 
taxable  costs,  as  one  of  the  conditions 
of  setting  it  aside  at  a  subsequent 
term.  Slade  v.  Warren.  431 


DEMAND. 

An  action  to  recover  money  deposited  on 
an  illegal  wager  may  be  maintained 
without  demand.  Ruckman  v.  Pitcher, 

392 

See  SPECIAL  VERDICT,  3,  4. 
TROVER. 


DEPOSITION. 
See  EVIDENCE,  t,  8. 

DEVASTAVIT. 
See  EXECUTOR,  3. 

DEVISE. 


DOWER. 

1.  In  ejectment  for  dower  against  a  gran- 
tee of  the  husband  by  quit  claim  deed, 
or  a  person  holding  under  such  grantee, 
the  defendant  is   not  estopped  from 
showing  that  the  husband  was  not 
seized  of  such  an  estate  in  the  premises 
as   to  entitle  his   widow  to  dower. 
Sparrow  v.  Eingman,  242 

2.  The  cases  of  Sherwood  v.    Vanden- 
lurgh,   (2  Hill,  303,)  Bown  v.  Potter, 
(17    Wend.    164,)   and   other  similar 
cases  in  the  supreme  court,  considered, 
and  in  this  respect  overruled.  id 


E 

EASEMENT. 
See  ADVERSE  POSSESSION. 

EJECTMENT. 
S:-s  DOWEH. 


624 


INDEX. 


ELECTION. 

See  MORTGAGE,  4,  5. 
EXTINGUISHMENT,  3. 


ENTAILS. 
See  ESTATES  TAIL. 

EQUITABLE  CONVERSION. 
See  EXECUTORS,  1,  2. 

ERROR. 

J.  An  error  in  the  court  below,  which  on 
its  face  could  do  no  possible  injury,  is 
no  cause  for  reversing  a  judgment. 
But  where  the  error  is  in  the  admission 
of  illegal  evidence  which  bears  in  the 
least  degree  on  the  result,  it  cannot  be 
disregarded.  Per  JEWETT,  C.  J.  Wor- 
rall  v.  Par  melee,  519 

'.'.  Accordingly,  where  illegal  evidence 
tending  to  establish  a  certain  fact  was 
received  after  objection  duly  made ; 
held,  that  the  error  could  not  be  disre- 
garded, although  the  party  objecting 
afterwards  introduced  evidence  which 
tended  to  establish  the  same  fact,  id 

See  COSTS,  2. 


ESTATES. 
See  WILL. 


ESTATES  TAIL. 

1 .  A  remainder  in  fee  limited  by  will  to 
the  eldest  son  of  the  first  taker  to  whom  j 
an  intermediate  life  estate  is  given,  is 
contingent  until  the  birth  of  such  son ; 
but  on  the  happening  of  that  event  be- 
fore the  termination  of  the  life  estate  it 
becomes  a  vested  estate  in  remainder. 
Wendell  v.  Crandall,  491 


2.  And  where  an  estate  tail  in  remainder 
was  so  limited,  and  became  vested  by 
the  birth  of  a  son  prior  to  the  act  of  | 
1780,  abolishing  entails;  held,  that  by  j 
the  operation  of  that  act,  the  estate  tail ' 
in  remainder  was  converted  into  a  fee  1 4, 
simple  in  remainder,  which,  on  the) 


death  of  the  remainderman  without 
issue  in  1809,  and  before  the  termina- 
tion of  the  intermediate  life  estate,  de- 
scended to  his  father  as  hishoir  at  law. 


3.  One  who  has  a  vested  remainder  in  fee 
simple,  expectant  on  the  determination 
of  a  present  freehold  estate,  has  such  a 
seisin  in  law,  where  the  estate  was  ac- 
quired by  purchase,  as  will  constitute 
him  a  stirps  or  stock  of  descent.  id 


ESTOPPEL. 
See  DOWER. 


EVIDENCE. 

1.  The  act  of  1833,  (Laws  of  1833,  ch. 
271,  §  9,)  in  relation  to  the  proof  and 
acknowledgment  of  written   instru- 
ments, has  not  changed  the  provision 
of  the  revised  statutes  which  requires  a 
certificate  of  the  county  clerk  in  order 
to  entitle  a  conveyance  of  real  estate, 
proved  or  acknowledged  before  a  com- 
missioner of  deeds  or  county  judge  not 
of  the  degree  of  counsellor,  to  be  read 
in  evidence  or  recorded  in  any  other 
county  than  that  in  which  the  commis- 
sioner or  judge  resides.   Wood  v.  Wei- 
ant,  77 

2.  Accordingly  held,  that  a  conveyance 
of  real  estate,  acknowledged  before  a 
commissioner  in  and  for  the  county  of 
Orange,  in  1836,  could  not  be  read  in 
evidence  at  the  circuit  in  Roekland 
county,  without  the  certificate  of  the 
clerk  of  Orange  county.  id 

3.  Where  the  original  execution  upon 
which  a  levy  had  been  made  was  lost, 
and  the  supreme  court  from  which  it 
issued  ordered,  on  motion,  that  a  new 
one  like  the  original  be  issued  as  a  sub- 
stitute therefor,  that  the  sheriff's  certi- 
ficate of  the  levy  be  endorsed  thereon, 
and  that  such  substituted  execution 
and  certificate  have  the  same  force  and 
effect  as  the  original  would  have,  and 
a  new  execution  was  issued  and  en- 
dorsed  accordingly ;    held,    that   the 
same  was  admissible  as  primary  evi- 
dence to  prove  and  justify  the  levy 
without  showingthc  loss  of  the  origin- 
al     Jlurkle  v.  Luce,  1G3 


It  seems  that  where  one  party  receives 
money  from  another,  and  there  is  no 


INDEX. 


625 


explanation  of  the  fact,  the  presump- 
tion is  that  he  receives  it  because  it  is 
his  due,  and  not  by  way  of  loan.  JBo- 
gertv.  Morse,  377 

5,  But  where  a  witness  testified,  that  he 
asked  the  defendant  if  he  had  had  any 
money  of  the  plaintiff,  and  the  defen- 
dant replied  that  he  had  had  twenty 
dollars  of  him,  and  the  ivitness  then  told 
the  defendant  that  the  plaintiff  had  re- 
quested the.  ivitness  to  speak  to  him 
about  it,  to  which  the  defendant  modi 
no  reply,  but  turned  away ;  HELD,  that 
a  jury  might  infer  from  this  evidence 
that  the  money  was  received  by  way 
of  a  loan,  and  the  jury  having  so 
found,  that  their  verdict  in  a  justice's 
court  was  conclusive.  id 

G.  "Where  the  cross-examination  of  the 
principal  witness  for  the  people  was 
conducted  in  a  manner  tending  to  im- 
pair her  credibility,  and  to  show  that 
the  prosecution  was  the  result  of  a  con- 
spiracy in  which  she  was  concerned ; 
held  that  it  was  competent  to  sustain 
the  witness,  by  showing  that  another 
person,  to  whom  the  facts  had  become 
professionally  known,  wrote  to  the 
public  authorities,  and  was  the  cause 
of  the  prosecution  being  instituted. 
Lohman  v.  The  People,  380 

7.  The  deposition  of  a  witness  taken  in  a 
criminal  case  pursuant  to  the  statute 
relating  to  certain  offences  committed 
in  the  city  of  Now- York,  (Stat.  of 
1844,  p.  476,  §  11,)  may  be  read  in 
evidence  on  the  trial  of  the  indictment, 
on  proof  that  the  witness  is  a  non-resi- 
dent of  the  city  at  the  time  of  the  trial, 
and  was  so  when  the  deposition  was 
taken.  Barron  v.  The  People,  386 


3.  Where,  however,  the  only  proof  pre- 
liminary to  reading  the  deposition  was 
the  evidence  of  a  person  employed  by 
the  district  attorney  to  serve  subpoenas, 
who  testified  that  a  subpoena  was  is- 
sued to  him  for  the  witness  whose  de- 
position was  offered  to  be  read,  that  he 
called  at  two  hotels  in  the  city,  where, 
as  he  was  informed  by  the  district  at- 
torney, the  witness  stopped  when  he 
was  iu  the  city,  that  he  inquired  of 
the  bar-keepers  at  each  of  those  places, 
and  was  informed  that  the  witness  was 
not  at  either  of  those  places,  and  did 
not  live  in  New-York  to  their  knowl- 
edge, that  he  could  not  find  the  wit- 
ness in  the  city,  and  did  not  know 
where  he  resided  ;  held  insufficient  toi 
authorize  the  deposition  to  be  read.  id\ 

VOL.  I.  79 


9.  The  declarations  of  a  former  owner  of 
personal  property  are  not  admissible 
in  evidence  to  prove  a  sale  of  such 
property  to  a  party  claiming  under 
him.  Worrall  v.  Parmelee,  519 


10.  And  where  such  evidence  was  duly 
objected  to,  and  the  party  objecting 
afterwards  called  as  a  witness  the  per- 
son whose  declarations  had  been  given 
in  evidence,  and  examined  him  in  re- 
gard to  the  alleged  sale;  held,  no 
waiver  of  the  objection.  id 


11.  The  declarations  of  a  person  in  pos- 
session of  lands  are  competent  evi- 
dence against  himself  and  all  persons 
claiming  under  him,  for  the  purpose 
of  showing  the  character  of  his  pos- 
session, and  by  what  title  he  claims. 
Pitts  v.  Wilder,  525 


12.  In  an  action  for  slander,  it  is  not 
competent  for  the  plaintiff  to  intro- 
duce evidence  of  his  good  character 
in  reply  to  evidence  introduced  by 
the  defendant  tending  to  prove  the 
truth  of  the  charge.  Houghtaling  v. 
Kilderhouse,  530 


See  ACTION  ON  THE  CASE. 
ADVERSE  POSSESSION. 
BANKRUPTCY,  3,  4,  5. 
CONTRACT,  1,  2. 
ERROR. 

INDICTMENT,  4. 
INSURANCE,  2. 
JURISDICTION,  3,  4. 
JUROR. 

PAROL  EVIDENCE,  1,  2. 
SLANDER. 
TROVER. 
WITNESS. 


EXCEPTION. 

See  BILL  OF  EXCEPTIONS. 
ERROR. 
TRIAL. 


EXECUTION. 

See  BANKRUPTCY,  6,  7. 
CONSTITUTIONAL  LAW,  2. 
EVIDENCE,  3. 
EXTINGUISHMENT,  3. 
MoRTfJACK  OF  CHATTELS,  1,  2. 
PLKUGE. 

IlilPI.EVIX.    1. 


626 


INDEX. 


EXECUTORS. 

1.  Where  a  testator  devised  and  be- 
queathed all  his  real  and  personal  es- 
tate to  his  executors,  in  trust,  to  sell 
the  same  whenever  they  should  see  fit ; 
also  with  authority  to  lease  the  same, 
and  directed  the  executors  to  divide 
the  whole  trust  estate  into  nine  equal 
parts,  and  pay  over  and  convey  one 
of  said  parts  to  each  of  his  four  chil- 
dren who  were  of  age,  and  to  hold  the 
remaining  five  parts  until  his  minor 
children  should  respectively  become  of 
age,  and  to  pay  over  and  convey  to 
them  their  shares  as  they  should  be- 
come of  age ;  held,  that  the  executor 
could  be  compelled  to  account  before 
the  surrogate,  not  only  for  the  personal 
estate  bequeathed  to  him,  but  also  for 
the  rents  and  profits  of  the  real  estate, 
and  for  the  proceeds  of  such  real  es- 
tate as  he  had  sold  pursuant  to  the 


directions  contained  in  the  will. 
v.  Jackson, 


Stagg 
206 


2.  It  seems,  upon  the  doctrine  of  equita- 
ble conversion,  that  under  such  a  will 
the  whole  estate  is  to  be  considered  as 
personal  estate  from  the  death  of  the 
testator,  so  that  the  rents  and  profits 
of  the  real  estate  received  by  the  exec-  j  3 
utor,  and  the  proceeds  of  a  sale  there- 
of made  by  him,  become  legal  assets 
in  his  hands,  for  which  ho  is  bound  to 
account  as  personal  estat,'.  id 


3.  An  executor,  who  was  also  a  devisee 
and  legatee,  died  insolvent,  having 
wasted  .a  large  portion  of  the  estate, 
and  leaving  unpaid  a  debt  againt  the 
testator,  and  also  a  judgment  against  j 
himself  for  a  debt  in  no  way  connected  | 
with  the  estate,  which  judgment  was| 
a  lieu  on  his  share  as  devisee  in  certain 
real  estate  of  the  testator.  His  co- 
devisees  and  legatees  were  his  heirs  at 
law,  and  as  such  took  his  share  in  the 
real  estate ;  and  having  paid  the  whole 
debt  against  their  testator,  they  filed 
their  bill  against  the  judgment  creditor 
of  the  deceased  executor,  claiming  to 
be  substituted  to  the  lien  of  the  cred- 
itor whom  they  had  paid,  upon  the  ex- 
ecutor's share  in  such  real  estate,  and 
to  restrain  the  sale  thereof  by  the  judg- 
ment creditor;  also  claiming  a  lien 
thereon  in  consequence  of  the  deuas- 
tavit  of  which  the  executor  had  been 
guilty.  Hdd  that  the  bill  could  not 
be  sustained.  Wilkes  \.  Harper,  5SG 

See  Po\vi:n. 

LKI;.\CV  AND  LI-X;ATKK,  7. 


EXECUTORS  AND  ADMINIS- 
TRATORS. 

See  JURISDICTION,  6. 


EXEMPTION  ACT. 
See  CONSTITUTIONAL  LAW,  2. 

EXTINGUISHMENT. 

.  A  judgment  confessed  by  the  mort- 
gagor to  the  mortgagee  for  the  same 
debt  secured  by  a  personal  mortgage, 
does  not  merge  or  extinguish  the 
mortgage,  where  by  agreement  the 
judgment  is  taken  as  collateral  mere- 
ly. Butler  v.  Miller,  496 

.  And  even  where  there  is  no  agree- 
ment that  the  judgment  shall  bo  held 
as  collateral,  quere ;  whether  a  judg- 
ment for  the  debt  can  work  an  extin- 
guishment of  the  mortgage.  The  case 
of  Butler  and  Vosburgh  v.  MiUer,  (1 
Denio,  407,)  referred  to  and  questioned 
in  this  particular.  id 

But  where  execution  upon  a  judgment 
confessed  for  the  mortgage  debt  was 
issued,  and  levied  upon  the  chattels 
mortgaged,  which  were  advertised  for 
sale  thereunder,  and  after  the  same 
property  was  sold  upon  another  exe- 
cution against  the  mortgagor,  the 
mortgagees  moved  the  supreme  court 
for  an  order  directing  the  sheriff  to 
apply  the  proceeds  of  the  sale  upon 
their  execution  ;  held,  in  an  action  of 
trover  by  the  mortgagees  against  the 
sheriff  who  made  the  sale,  that  these 
acts  were  repugnant  to  any  claim  un- 
der the  mortgage,  and  precluded  the 
plaintiffs  from  so  claiming  the  prop- 
erty, id 
See  BANKRUPTCY,  6. 


F 

FALSE  PRETENCES. 
See  CRIMINAL  LAW,  1. 

FIXTURES. 

It  pcems  that  rails  built  into  fence  by  a 
tenant,  under  an  agreement  that   he 


INDEX. 


627 


may  remove  them  from  the  land,  are, 
as  between  such  tenant  and  the  owner 
of  the  soil,  personal  property.  Molt  v. 
Palmer,  564 

See  COVENANT,  4,  5. 


FORGED  ENDORSEMENT. 

See  BILLS  OP  EXCHANGE  AND  PROMIS- 
SORY NOTES,  1,  2,  3,  4,  6,  6. 


FORMER  SUIT. 

See  INDICTMENT,  4. 

JURISDICTION  OP  CHANCERY,  6,  7. 


FRAUD. 

1.  Where  one  conveys  or  leases  to  an- 
other his  right  in  real  estate,  an  action 
will  lie  for  a  fraudulent  representation 
as  to  the  territorial  extent  of  such 
right.     Whitney  v.  Allaire,  305 

2.  And  in  such  a  case  the  proper  mea- 
sure of  damages  in  favor  of  the  lessee 
is  the  sum  which  in  good  faith  he  is 
obliged  to  pay  a  third  person  to  ob- 
tain what  the  lease  would  have  given 
him  if  the  representation  had  been 
true.  id 

3.  A  demise  for  a  term  commencing  in 
futuro  passes  a  present  interest  in  the 
term  to  the  lessee.  id 

4.  And  the  lessee  by  taking  possession 
at  the  commencement  of  the  term,  and 
after   having   discovered    the     fraud 
waives  thereby  only  his  right  to  re- 
scind the  contract,  but  not  his  right 
to  recover  the  damages  occasioned  by 
the  fraud.  id 

5.  The  defendant,  in  February,  executed 
to  the  plaintiff  a  writing  under  seal, 
stating  that  he  had  hired  of  the  plain- 
tiff a  certain  water  lot  and  his  right  to 
a  wharf  in  the  city  of  New- York,  for 
one  year  from  the  first  of  May  next,  at 
$1000  rent.  He  was  induced  to  make 
the  contract  through  the  fraudulent 
representations  of  the  plaintiff,  that 
the  right  mentioned  in  the  lease  com- 
prehended a  parcel  of  land  which  in 
fact  belonged  to  the  corporation  of  the 
city  of  New-York.  The  defendant  dis- 
covered the  fraud  before  the  first  of 
May,  and  obtained  from  the  corpora- 


tion a  lease  for  that  parcel  at  an  an- 
nual rent  of  $1000.  On  the  first  of 
May  he  took  possession  of  the  whole 
and  occupied  during  the  year.  In 
covenant  for  the  rent ;  held,  that  he 
was  entitled  to  a  deduction  by  reason 
of  the  fraud,  of  the  sum  which  he  was 
obliged  in  good  faith  to  pay  for  the 
corporation  lease.  id 

6.  It  seems,  that  an  action  will  lie  for  a 
fraudulent  representation  by  which  a 
party  is  induced  to  enter  into  a  con- 
tract which  is  executory  merely.  Per 
GARDINER,  J.  id 

7.  It  seems  also,  that  where  one  conveys 
or  leases  real  estate,  an  action  will  lie 
for  a  fraudulent  representation  as  to 
the  title.  id 

8.  It  seems,  that  the  question  of  fraud 
in  a  personal  mortgage  should  be  sub- 
mitted to  the  jury,  although  no  change 
of  possession  accompanies  the  mort- 
gage, and  the  verdict  of  the  jury  in 
favor  of  the  bona  fides  of  the  transac- 
tion will  be  as  conclusive  as  upon  any 
other  question  of  fact.     Butler  v.  Mil- 
ler, 496 

See  PARTIES  TO  ACTIONS,  1. 


FRAUDS,  STATUTE  OF. 

1.  Plaintiff  and  defendant  bargained  re- 
specting the  sale,  by  the  former  to  the 
latter,  of  a  quantity  of  lumber,  piled 
apart  from  other  lumber,  on  a  dock 
and  in  view  of  the  parties  at  the  time 
of  the  bargain,  and  which  had  before 
that  time  been  measured  and  inspect- 
ed.   The  parties  having  agreed  as  to 
the  price,  the  plaintiff  said  to  the  de- 
fendant, "  the  lumber  is  yours?     The 
defendant  then  told  the  plaintiff  to  get 
the  inspector's  bill,  and  take  it  to  one 
House,  who  would  pay  the  amount. 
This  was  done  the  next  day,  but  pay- 
ment was  refused.  The  price  was  over 
fifty  dollars.    Held,  in  an  action  to  re- 
cover the  price,  that  there  was  no  de- 
livery and  acceptance  of  the  lumber, 
within  the  meaning  of  the  statute  of 
frauds,  and  that  the  sale  was  therefore 
void.     Shindler  v.  Houston,  261 

2.  It  seems  that  to  constitute  a  delivery 
and  acceptance  of  goods,  such  as  the 
statute  requires,  something  more  than 
mere  words  is  necessary.  Superadded 
to  the  language  of  the  contract,  there 
must   be   some   act   of    the    parties, 


628 


INDEX. 


amounting  to  a  transfer  of  the  posses- 
sion, and  an  acceptance  thereof  by  the 
buyer.  The  case  of  cumbrous  articles 
is  not  an  exception  to  this  rule.  id 


G 

GROWING  CROPS. 
See  PROPERTY. 

GUARANTY. 

See  BILLS  OP  EXCHANGE  AND  PROMISSO- 
RY NOTES,  11,  12. 
SUBROGATION,  2,  3. 

H 

HUSBAND  AND  WIFE. 

1.  The  separate  estate  of  a  married  wo- 
man is  not  liable  at  common  law  for 
her  debts  contracted  before  marriage ; 
and  the  only  ground  on  which  it  can 
be  reached  in  equity,  is  that  of  ap- 
pointment, i.  e.  some  act  of  hers  after 
marriage  indicating  an  intention  to 
charge  the  property.  Vandkrheyden 
v.  MaUory,  452 

'2.  The  bankruptcy  of  the  husband,  al- 
though it  extinguishes  the  debt  as  to 
him,  and  suspends  the  legal  remedy 
as  to  her  during  the  coverture,  does 
not  afford  any  ground  for  proceeding 
in  equity  to  charge  her  separate  es- 
tate, id 

Ii.  The  creditor  in  such  a  case  may 
prove  his  debt  and  share  in  the  dis- 
tribution of  the  bankrupt's  estate,  id 

4.  A  feme  sole,  having  contracted  a  debt, 
and  owning  some  shares  of  bank  stock, 
married.  After  marriage,  the  stock, 
with  the  consent  of  the  husband,  was 
transferred  to  a  third  person  for  the 
purpose  of  having  it  transferred  back 
to  her  for  her  sole  and  separate  use, 
which  was  accordingly  done.  She  also 
held  other  shares  of  bank  stock  which 
had  been  transferred  to  her  separate 
use  by  the  executor  of  her  father's  es- 
tate. The  creditor  sued  the  husband 
and  wife  at  law,  and  being  nice  by  a 
plea  of  the  husband's  bankruptcy.  <lis- 
continu.-d.  He  then  tiled  a  bill  hi 
equity  f'..r  t!..-  purpose  of  reaching  tl"1 
bank  Mock.  No  fraud  in  tin-  transfer 


to  the  wife's  separate  use  being  al- 
leged, nor  any  act  of  the  wife  after 
marriage  indicating  an  intention  to 
charge  this  fund ;  held,  that  the  bill 
could  not  be  sustained.  id 

5.  It  seems,  that  when  a  debt  is  con- 
tracted by  a  woman  during  coverture 
either  for  herself  or  as  surety  for  her 
husband,  this  will  be  prima  facie  evi 
dence  of  an  appointment  or  appropri- 
ation of  her  separate  estate  to  the  pay- 
ment of  the  debt.  «'</ 

6.  But  this  doctrine  has  no  application 
where  the  debt  was  contracted  by  the 
woman  before  marriage.     The  act  of 
marriage  does  not  raise  an  appoint- 
ment ;  nor  does  a  promise  by  her  and 
her  husband  to  pay  the  debt  out  of 
some  other  fund  not  conveyed  to  her 
separate  use,  e.  g.  a  legacy  or  distrib- 
utive share  in  her  former  husband's 
estate,  enable  the  creditor  to  reach 
her  separate  estate.  id 

7.  The  law  casts  upon  the  husband  a 
temporary  liability  for  the  debts  of  Uie 
wife  contracted  before  marriage.  This 
liability    ceases   with    the   coverture, 
unless  judgment  has  been  recovered 
against  both.     If  the  wife  survive  the 
husband,  and  judgment  has  been  re- 
covered,  her    sole   liability  revives. 
Per  JEWETT,  C.  J.  id 

\  8.  The  bankruptcy  of  the  husband  ex- 
tinguishes the  liability  as  to  him  ;  but 
it  revives  against  the  wife  if  she  sur- 
vive her  husband.  Per  JEWETT,  C.  J. 

id 

( 9.  Where  real  estate  was  purchased  and 
paid  for  in  part  with  the  money  or 
funds  of  the  husband,  and  with  his  as- 
sent the  conveyance  was  taken  to  a 
trustee  who  simultaneously  gave  a 
mortgage  on  the  estate  for  the  residue 
of  the  purchase  money,  and  also  with 
the  husband's  assent  executed  a  dec- 
laration of  trust  to  the  effect  that  the 
premises  were  held  to  the  sole  and 
separate  use  of  the  wife,  subject  to  the 
mortgage;  held,  the  rights  of  creditors 
not  being  in  question,  that  the  dec- 
laration of  trust  was  valid  and  bind- 
ing upon  the  husband,  and  that  the 
husband  had  no  interest  in  such  estate. 
Martin  v.  Martin,  4713 

1 0.  Where  real  estate  of  a  wife  which  is 
heldsubjnct  to  the  marital  rights  of  her 
husl>anri  is  sold.  th<-  | TOO  <  <ls  of  such 
s.ilc.bi-ing  money  or  JJLTS  >nal  property, 


INDEX. 


629 


belong  to  the  husband,  subject  only  to 
the  equitable  right  of  the  wife  to  a 
support  therefrom;  and  equity  will 
not  interpose  in  such  a  case  in  her 
favor,  where  suitable  provision  is  oth- 
erwise made  for  her,  or  where  she  is 
living  in  a  st  ate  of  unjustifiable  sepa- 
ration from  her  husband.  id 

11.  Accordingly,  where  the  wife  owned 
a  dower  interest  in  four-sixths  of  cer- 
tain real  estate  of  which  her  former 
iiusband  died  seized,  and  owned  in  fee 
the   remaining    two-sixths,    and  the 
husband  and   wife  united  in  a  sale, 
and  out  of  the  proceeds  of  such  sale 
the  sum  of  $3,000  was  paid,  without 
the   husband's   assent,  upon  a  mort- 
gage  which  encumbered  the  wife's 
separate  estate :  held,  that  the  hus- 
band had  a  claim  upon  such  separate 
estate  to  that  extent.  id 

12.  But  another  sum  of  $2,000  out  of 
such  proceeds  appearing  to  have  been 
paid  upon  the  same  mortgage  with 
the  husband's  unqualified  assent;  held, 
that  such  payment  was  a  valid  appro- 
priation of  that  sum  to  the  wife's  sepa- 
rate use,  and  that  in  respect  to  it  the 
husband  had  no  claim  upon  the  sepa- 
rate estate.  id 


ILLEGAL  CONTRACT. 

See  BETTING  AND  GAMING,  1,  2,  3. 
OFFICE  AND  OFFICER. 
WITNESS,  1.  2. 


IMPRISONMENT  FOR  DEBT. 

See  N 


INDEMNITY. 

1.  In  contracts  of  indemnity,  where  the 
obligation  is  to  perform  some  specific 
thing  or  to  save  the  obligee  from  a 
charge  or  liability,  it  seems  the  con- 
tract is  broken  when  there  is  a  failure 
to  do  the  specific  act,  or  when  such 
charge  or  liability  is  incurred.  Gil- 
bert v.  W  a  man,  550 


damage  or  molestation  by  reason  of 
the  acts  or  omissions  of  another,  or  by 
reason  of  any  liability  incurred  through 
such  acts  or  omissions,  there  is  no 
breach  until  actual  damage  is  sus- 
tained, id 

,  And  in  such  cases  a  judgment  recov- 
ered against  the  party  indemnified,  on 
account  of  the  acts  or  neglect  of  an- 
other for  which  he  is  answerable, 
without  payment  of  the  judgment,  or 
some  part  thereof,  does  not  entitle 
him  to  sustain  an  action  against  the 
indemnitors.  id 

,  A  deputy  sheriff  and  his  sureties  exe- 
cuted to  the  sheriffabond,  conditioned 
that  the  deputy  should  so  demean 
himself  in  all  matters  touching  his 
duty,  that  the  sheriff  should  not  sus- 
tain any  damage  or  molestation  by  rea- 
son of  any  act  done  or  liability  incur- 
red by  or  through  such  deputy.  The 
sheriff  was  sued  and  judgment  recov- 
ered against  him  for  a  default  of  the 
deputy  in  not  returning  an  execution. 
Other  judgments  were  also  recovered 
against  him  and  his  sureties  upon 
bonds  given  to  discharge  himself 
from  arrest  under  attachments  issued 
against  him  for  not  returning  other 
executions  in  the  hands  of  the  deputy. 
No  part  of  the  judgment  having  been 
paid  by  the  sheriff,  and  no  actual 
damage  being  shown,  held,  that  there 
was  no  breach  of  the  bond  of  the 
deputy  and  his  sureties,  and  that  the 
sheriff  could  not  maintain  an  action 
thereon.  id 


INDICTMENT. 

1.  "Where   the   indictment  charged  the 
defendant  with  publishing  an  account 
of  an  illegal  lottery,  and  set  forth  in 
hcec  verba  the  lottery  scheme,  which 
showed  that  the  prizes  consisted  of 
sums  of  money  ;  held  good,  although 
it  was  not  otherwise  averred  that  the 
lottery  was  set  on  foot  for  the  purpose 
of    disposing    of    money,     land.    &c. 
Charles  v.  The  People.  180 

2.  Mere  surplusage  in  an  indictment  will 
not  vitiate,   and  therefore  where  an 
indictment  alleges  facts  which  consti- 
tute a  misdemeanor,  it  will  be  good 
for  that  offence,  although  it  state  other 
facts  which  go  to  constitute  a  felony, 
provided  all  the  facts  alleged  fall  short 
of  the  charge  of  fel<  >:iy  ii:  <  onsequeiico 
of  some   other  fhrts   c-^.ri.iial  to  that 
change,  c.  g.  tiie  ii:U'i:l  of  the  party  ac- 


630  INDEX. 


cused  not  being  averred.    Lohman  v. 
The  People,  379 

3.  By  statute  (Laws  of  1845,  ch.  260,  §  2) 
it  is   a  misdemeanor  to  administer 
drugs,  &c.,  to  a  pregnant  female  with 
intent  to  produce  a  miscarriage ;  and 
by  statute  (Laws  of  1846,  ch.  22,  §  1) 
it  is  manslaughter  to  use  the  same 
means  with  intent  to  destroy  the  child, 
in  case  the  death  of  suoh  child  be 
thereby  produced.     The   indictment 
charged  all  the  facts  necessary  to  con- 
stitute the  crime  of  manslaughter,  ex- 
cept the  intent  with  which  the  acts 
were  done,   and  in  its  conclusion  it 
characterized  the  crime  as  manslaugh- 
ter ;  but  the  only  intent  charged  was 
an  intent  to  produce  a  miscarriage  : 
HELD,  that  the  indictment  was  fatally 
defective  for  the  felony,  but  good  for 
the   misdemeanor,   and  that  the  ac- 
cused was  properly  convicted  of  the 
latter  offence.  .       id 

4.  A  conviction  for  a  misdemeanor  under 
such  an  indictment  would,  it  seems, 
be  a  bar  to  a  subsequent  indictment 
for  the  felony.     The  record  would  be 
conclusive  evidence  that  the  acts  were 
done  with  the  intent  alleged  in  the  in- 
dictment, and  therefore   the  people 
could  not  allege  a  different  intent,  so 
as  to  constitute  a  different  offence,   id 

See  CRIMINAL  LAW. 


INJUNCTION. 
See  APPEAL,  17,  18. 

INSOLVENT  CORPORATIONS. 
See  JURISDICTION,  3,  4,  5. 

INSURANCE. 

1.  Where  a  policy  of  insurance  prohibit- 
ed an  assignment  of  the  interest  of  the 
assured,  "unless  by  the  consent  of  the 
company  manifested  in  writing,"  and 
the  secretary,  on  an  application  to  him 
at  the  office  of  the  company,  endorsed 
Upon  the  policy  and  subscribed  a  con- 
sent, it  scorns  that  his  authority  to  do 
so,  in  the  absence  of  evidence  to  the 
contrary,  should  be  presumed.     Con- 
over  v.  Insurance  Co.  of  Albany,      290 

2.  But  if  it  were  necessary  to  prove  his 
authority,  a  formal  resolution  of  the 


board  of  directors  need  not  be  shown, 
Evidence  that  the  secretary,  he  being 
the  sole  agent  of  the  company  in  trans- 
acting business  at  their  office,  has  been 
in  the  uniform  habit  of  giving  such 
consent,  in  writing,  and  made  regular 
entries  of  his  acts  in  the  books  of  the 
company,  without  any  objection  or  re- 
pudiation on  the  part  of  the  company, 
is  enough  at  least  to  carry  the  question 
of  authority  to  the  jury.  id 

3.  A  mortgage  given  by  the  insured  upon 
the  property  covered  by  the  policy,  is 
not  an  alienation  by  sale  or  otherwise, 
within  the  meaning  of  the  seventh 
section  of  the  charter.  (Laws  of  1836, 
p.  315  and  44.)  id 

4.  And  notwithstanding  such  mortgage, 
and  an  assignment  of  the  policy  to  the 
mortgagee,  with  the  consent  of  the 
company,  a  suit  upon  the  policy  to  re- 
cover for  a  loss  must  be  brought  in 
the  name  of  the  insured.  id 

5.  Where  the  charter  of  a  mutual  in- 
surance   company    authorized    such 
company,  "for  the  bettor  security  of 
its  dealers,"  to  receive  premium  notes 
in  advance,  of  persons  intending  to 
take  policies,  and  to  negotiate  such 
notes  for  the  purpose  of  paying  claims 
or  otherwise,  in  the  course  of  its  busi- 
ness, and  to  pay  to  the  makers  of  such 
notes  a  compensation  not  exceeding 
five  per  cent  per  annum,  on  so  much 
of  the  notes  as  exceeded  the  premi- 
ums on  policies  actually  taken ;  held, 
that  a  note  taken  by  the  company  in 
pursuance  of  its  charter  for  premiums 
in  advance,  was  valid  and  effectual 
for  the  whole  face  thereof,  although 
the  premiums  on  insurances  actually 
received  by  the  maker,  amounted  to 
only  a  part  of  such  note.     Deraismes 
v.  The  Merchants' Mutual  Ins.  Co.  371 

6.  It  seems,  that  a  notice  so  given  is  valid 
by  force  of  the  statute  authori/.ing  it 
to  be  taken,  and  therefore  that  a  par- 
tial faih're  of  consideration  cannot  bo 
set  up  to  defeat  a  recovery  of  the  full 
amount.  id 

7.  But  if  a  consideration  is  necessary,  the 
concurrence  of  others  in  giving  similar 
notes  for  the  purpose  of  giving  a  credit 
to  the  company  in  pursuance  of  an 
agreement  entered  into  by  all  the  ma- 
kers; the  contemplated  advantages  of 
insurance  in  such  company,  and  the 
compensation  authorized  to  bo  paid  to 
the  makers  on  such  an  amount  as  tho 


INDEX. 


631 


notes  should  exceed  the  premiums  on 
insurances  actually  taken,  constitute  a 
sufficient  consideration  to  uphold  such 
a  note  id 


JUDGMENT. 

See  EXTINGUISHMENT. 

JURISDICTION. 

1.  The  court  of  appeals  does  not  lose  ju- 
risdiction of  a  cause  brought  up  by 
writ  of  error,  until  the  remittitur  is 
actually  filed  with  the  clerk  of  the 
court  below.     Burkle  v.  Luce,        239 

2.  Where  after  affirmance  of  the  judg- 
ment of  the  court  below,  a  remittitur 
has  been  sent  to  and  filed  with  the 
clerk  of  that  court,  this  court  loses  ju- 
risdiction of  the  cause,  so  that  it  can- 
not open  a  default  therein.    Martin 
v.  Wilson,  240 

3.  By  statute  (2  R  S.  464,  §§  41,  42  ; 
id.  469,  §§  67,  68,  72  ;  id.    43,  §  12) 
whenever  a  receiver  of  an  insolvent 
corporation  "shall  show   by  his  own 
oath  or  other  competent  proof"  that 
any  person  is  indebted  to  the  corpo- 
ration, or  has  property  of  the  corpo- 
ration in  his  custody  or  possession,  the 
officer  to  whom  the  application  is  made 
shall  issue  a  warrant  to  bring  such 
person  before  him   for  examination. 
Under  this  statute  it  is  sufficient  for 
the  receiver,  who  applies  fora  warrant, 
to  swear  to  the  facts,  on  information 
and  belief.     Noble  v.  Halliday,        330 

4-  Accordingly  held,  where  the  receiver 
of  an  insolvent  corporation  applied  for 
a  warrant  under  the  above  statute,  and 
showed  the  facts  only  by  his  own  oath 
on  his  information  and  belief,  and 
a  warrant  was  issued  upon  which  the 
person  proceeded  against  was  taken 
and  brought  before  the  officer;  held,  in 
an  action  brought  by  such  person 
against  the  receiver  and  others  acting 
under  the  warrant  for  an  assault  and 
battery  and  false  imprisonment,  that 
the  warrant  was  a  good  justification,  id 

5.  Under  the  above  statute,  a  person 
having  in  his  custody  as  administrator 
of  a  deceased  person,  effects  of  the  cor- 
poration, or  indebted  as  such  adminis- 
trator, is  liable  to  be  proceeded  against ; 


and  whore  tho  sworn  petition,  on 
which  the  warrant  was  granted,  stated 
that  such  person  had  property  of  the 
corporation  in  his  custody,  either  indi- 
vidually or  as  administrator,  &c.,  held 
good.  id 

6.  The  circuit  and  district  courts  of  the 
United  States,  though  of  limited  juris- 
diction, are  not  inferior  courts  in  the 
technical  sense  of  the  term.  Per  BEON- 
SON,  J.     Ruckman  v.  Cowell,          505 

7.  Trover  may  bs  maintained  in  the 
courts  of  this  state  against  a  postmas- 
ter for  improperly  detaining  a  news- 
paper, although  such  detention  is  un- 
der color  of  the  laws  of  the  United 
Slates  and  the  regulations  of  the  post 
office  department.    Teall  v.  Felton,  537 

8.  The  question,  when  the  jurisdiction  of 
the   federal  courts  is   exclusive  and 
when  concurrent  with  that  of  the  state 
courts,  considered.  id 

See  BANKRUPTCY,  5. 

CRIMINAL  LAW,  1,  2,  3,  4. 
EYECUTORS,  1. 
JURISDICTION  OF  CHANCERY. 


JURISDICTION  OF  CHANCERY. 

1.  A  court  of  equity  will  not  entertain 
jurisdiction  to  set  aside  a  will  of  real 
estate  for  fraud,  or  on  the  ground  of 
the   testator's    incompetency,    where 
there  is  a  perfect  remedy  at  law,  and 
the  objection  to  the  jurisdiction  is  taken 
in  due  season.     Brady  v.  McGosker, 

215 

2.  But  where  the  party,  claiming  in  hos- 
tility to  the  will  is  not  in  possession, 
and  an  impediment  exists  which  would 
prevent  a  recovery  at  law  of  the  whole 
or  any  part  of  the  estate  devised,  a  bill 
in  equity  will  be  entertained  to  have 
the  will  declared  void  and  delivered  up 
to  be  cancelled.  id 

3.  Accordingly,  where  a  bill  was  filed 
for  the  purpose  of  setting  aside  a  will 
on  the  ground  of  fraud  and  undue  in- 
fluence, and  it  appeared  that,  at  the 
filing  of  the  bill,  the  complainant  was 
not  in  the  actual  possession  of  the  es- 
tate, and  that  a  trust  term,  in  such  es- 
tate, which  vested  tho  legal  title  in 
trustees,  was  yet  unexpired,  so  that  no 
recover}'  could  be  had  in  ejectment ; 
held,  that  a  demurrer  to  the  bill  for 


632 


INDEX. 


want  of  jurisdiction  was  properly  over- 
ruled, id 

4.  So  also  it  is  a  good  answer  to  an  ob- 
jection for  want  of  jurisdiction,  that  a 
part  of  the  estate  devised  is  subject  to 
an  unexpircd  lease,  under  which  the  I 
lessee  or  his  assignee  is  in  possession,  j 

id\ 

F>.  And  where  the  bill  distinctly  showed 
the  existence  of  an  unexpired  trust  j 
term,  and  that  a  part  of  the  estate  was 
occupied  by  the  assignee  of  an  un- 
expired lease,  and  the  other  parts 
were  occupied  by  persons  under  an 
agent,  who  had  assumed  the  control . 
and  management  of  the  property  for  j 
the  benefit  of  such  party  as  should  be  ; 
entitled  thereto,  when  the  question 
upon  the  validity  of  the  will  should  be  : 
settled ;  held,  that  an  objection  for 
want  of  jurisdiction  would  not  lie,  aK 
though  the  bill  in  another  place  alleged 
that  the  complainant  was  entitled  to  j 
the  whole  estate  by  inheritance  in  fee  i 
simple,  and  that  he  ';  held  and  ivas  in ' 
lawful  possession  thereof,''  this  allega-  • 
lion  being  regarded  as  a  formal  legal : 
conclusion  from  the  facts  specifically 
sec  forth  in  the  other  parts  of  the  bill. 

id 

6.  The  complainants  were  sureties  for  C. 
upon  a  note  given  to  J.  for  a  usurious 
loan  of  money.  An  action  at  law  was  J 
brought  upon  the  note  against  the  com- 
plainants, and  C.  in  the  name  of  P.,  as 
endorsee.  The  complainants  pleaded 
the  general  issue,  and  gave  notice  of 
the  defence  of  usury,  but,  did  not  ver- 
ify the  notice  as  required  by  the  usury 
act  of  lft.'57,  so  as  to  entitle  them  to 
examine  the  plaintiff  as  a  witness. 
( )u  thetrial they  callcdasa  witness,  J.. 
the  payee  of  the  note,  who  stated,  on 
iiis  roire  dir<',  that  he  was  the  owner 
of  the  note  and  the  plaintilf  in  interest, 
and  objected  to  teMilying  in  the  cause, 
and  his  objection  was  sustained  by  the 
court.  A  verdict  was  taken  for  the 
amount  e<;'i:ial>!v  due  on  the  note,  and 
judgment  was  perfected  against  the 
complainants  and  t '.  ;  Ac//,  that  a  bill 
filed  by  the  complainants,  (ifltr  jmlij- 
'iiu'.nt  at  h'n:.  fur  the  purpose  of  obtain- 
ing the  testimony  of  ('..  and  for  relief 
iigain.-t  the  judgment  on  the  ground  of  I 
usury,  eeiild  not  lie  .-iHMined.  lY/./.vi 
mid  Jtwi'L  v.  ./',7<o'  «/.'/  ./'/'  /•'•]/. 


sureties,  were  discharged  by  reason  of 
the  holder  of  the  note  having  extended 
the  time  of  payment  to  the  principal 
debtor  in  consideration  of  a  usurious 
premium  paid  by  him  in  advance,  it 
not  being  shown  that  the  complainants 
were  prevented  from  setting  up  this 
defence  in  the  action  at  law,  by  any 
fraud  or  accident,  or  by  the  act  of  the 
opposite  party.  id 

See  MONEY  HAD  AND  RECEIVED. 


JUROR. 

A  juror  being  challenged  to  the  favor  tes- 
tified before  the  triers,  that  he  had 
formed  no  opinion  and  had  no  impres- 
sions as  to  the  guilt  of  the  prisoner,  but 
that  it  had  been  and  was  still  his  im- 
pression that  the  general  character  of 
the  prisoner  was  bad.  The  question 
was  then  put  to  the  juror  whether  he 
would  disregard  what  he  had  heard 
and  read,  and  render  his  verdict  ac- 
cording to  evidence.  Objected  to,  and 
exception  taken.  Held,  that  the  ques- 
tion, although  inartifieially  put,  sub- 
stantially called  for  the  consciousness 
of  the  juror  as  to  his  ability  to  try  the 
cause  impartially,  and  therefore  that 
it  was  properly  allowed.  Lehman  \ . 
The  People,  380 


LANDLORD  AND  TENANT. 

1.  Where  A.  occupied  land  under  II.. 
and  by  the  terms  of  their  agreement, 
the  grass  belonged  to  A.  :  hi-ld,  that 
A.  might  transfer  such  grass  while  yet 
growing,  by  a  personal  mortgage 
./(neks  v.  Fmiih,  ;HI 

'2.  A  demise  for  a  term  commencing  /•. 
fuluro  passes  a  present  interest  in  tin 
term  to  the  lessee.  Wliilney  v.  A>- 

laire,  >.") 

:;.  A.  executed  to  B.  a  lease  of  certain 
premises  for  one  year,  containing  a. 
clause  in  these  words:  '•  15.  to  have 
the  privilege  to  have  the  premises  for 
one  year,  one  month  and  twenty  da\> 
longer,  but  if  he  leaves  lie  is  to  gi\«- 
four  months  notice  before  the  ox  pirn- 
lion  of  tins  lease."  }/•!•>.  that  ll 
li'a--e  (Teatt  d  a  ti  nn  fiir  tin -full  [•>  ri."l 
r  f:\vo  vars.  (>!!<•  in. MI!I  ai.d  tueii1-. 


INDEX. 


633 


days,  defeasible  at  the  eletcion  of  the 
tenant,  after  one  year,  by  giving  no- 
tice of  his  intention  to  leave  the  prem- 
ises, four  months  previous  to  the  expi- 
ration of  the  year.  Chretien  v.  Do- 
ney,  419 

4.  Where  the  landlord  obtains  possession 
of  the  demised  premises  by  summary 
proceedings  which  are  reversed  in  the 
supreme  court  upon  certiorari,  that 
court  should  not  award  restitution  to 
the  tenant,  if  the  term  has  expired  be- 
fore the  judgment  of  reversal  is  ren- 
dered, id 

See  FIXTURES. 

FRAUD,  1,  2,  3,  4,  5,  6,  7. 


LEASE. 

See  FRAUD,  1,  2,  3,  4,  5,  6,  7, 
LANDLORD  AND  TENANT,  2,  3. 


LEGACY  AND  LEGATEE. 

1.  The  general  rule  is,  that  the  personal 
estate  of  a  testator  is  the  primary  fund 
for  the  payment  of  legacies,  and  a  tes- 
tator is  presumed  to  act  upon  this  legal 
doctrine,  unless  a  contrary  intent  is 
distinctly  manifested  by  the  terms  and 
provisions  of  the  will.     Hoes  v.  Van 
Hoesen,  120 

2.  Where  the  personal  estate  is  not  in 
terms  exonerated,  and  is  not  specifical- 
ly given  away  by  the  will,  it  will  be 
deemed  the  primary  fund  for  the  pay- 
ment of  legacies,notwithstanding  such 
legacies,  by  the  terms  of  the  will,  are 
expressly  charged  upon  the  persons  to 
whom  the  real  estate  is  devised.     The 
charge  upon  the  devisees  in  such  a 
case  will  be  deemed  in  aid,  and  not  in 
exoneration  of  the  primary  fund,     id  \ 

i 

3.  A  testator  gave  to  his  wife  the  use  of 
his  real  and  personal  estate  during  her 
widowhood ;  to  two  of  his  sons  he  de- 
vised the  reversionary  interest  in  his 
real  estate,  and  directed  them  to  pay 
legacies  to  his  other  son  and  to  his 
daughters ;  but  made  no  disposition  of 
the  reversionary  interest  in  the  person- 
al estate ;  held,  that  such  reversionary 
interest  in  the  personal  estate  was  the 
primary  fund  for  the  payment  of  the 
legacies.  id 

4.  A  testator  by  his  will,  made  in  180-1,  j 

VOL.  I. 


gave  all  his  real  and  personal  estate 
to  his  wife  during  her  life,  and  after 
her  death  to  his  grandson.  To  his 
granddaughter  he  gave  a  legacy,  to 
be  paid  by  his  grandson,  "out  of  the 
estate,"  in  one  year  after  he  should 
become  of  age.  The  grandson  became 
of  age  in  1820,  but  the  widow's  life 
estate  did  not  terminate  till  1832 ;  held, 
that  the  legacy  was  not  payable  until 
the  latter  period,  and  therefore  that  a 
bill  filed  soon  afterwards,  to  recover 
the  legacy,  was  not  liable  to  a  pre- 
sumption of  payment  from  lapse  ol 
tune.  Dodge  v.  Manning,  298 

5.  The  grandson,  in  1826,  mortgaged 
the  real  estate  which  he  took  undei 
the  will,  and  portions  of  it  were  pur- 
chased by  the  respondents,  with  notice 
of  the  legacy,  at  a  sale  upon  the  fore- 
closure of  the  mortgage.     Upon  bill 
filed  by  the  legatee  against  the  re- 
spondents and  the  grandson,  furtJier 
held,  that  the  grandson,  by  accepting 
the  estate,  became  personally  liable 
for  the  legacy,  that  the  legacy  was  an 
equitable  charge  upon  the  real  estate, 
but  that  the  respondents  should  not  be 
charged  in  respect  to  the  real  estate 
in  their  hands,  except  in  case  of  a  de- 
ficiency after  the  remedy  should  be 
exhausted  against  the  grandson,     id 

6.  Co-legatees  in  no  sense  sustain  to  each 
other  the  relation  of  surety  in  respect 
to  the  testator's  debts,  each  being  lia- 
ble only  in  proportion  to  the  amount  of 
his  legacy.     Wilkes  v.  Harper,      586 

7.  Legatees,  whose  shares  of  the  personal 
estate  of  the  testator  have  been  wasted 
by  the  executor,  have  no  lien  upon  the 
real  estate  devised  to  such  executor  to 
make  good  their  loss.  id 


LIEN. 

See  EXECUTOR,  3. 

LEGACY  AND  LEGATEE,  7. 


LIMITATION  OF  ACTIONS. 

1.  A  suit  against  a  stockholder  of  a  cor- 
poration, to  charge  him  individually 
with  a  debt  contracted  by  it,  pursuant 
to  a  provision  in  the  act  of  incorpora- 
tion, is  not  an  "action  upon  a  statute, 
for  a  forfeiture  or  caute,  the  benefit 
and  suit  whereof,  id  limited  to  the  par- 
ty aggrieved,"  and  therefore  is  not 


634 


INDEX. 


barred  by  tho  throe  years'  limitation 
prescribed  in  the  statute,  (2  R.  S.,  298, 
§  31,)  for  actions  of  that  class.  Cor- 
ning v.  McCuttough,  47 

2.  The  period  of  six  years  is  the  only  lim- 
itation provided  for  suits  of  this  de- 
scription, id 

3.  It  seems  that  the  short  statute  of  lim- 
itations above  referred  to,  is  intended 
only  to  embrace  penalties  and  forfeit- 
ures, properly   so   called,  and  other 
causes  of  action  penal  in  their  nature, 
and  where  both  the  cause  of  action  and 
the  remedy  are  given  by  statute  ;  but 
does  not  extend  to  cases  where  the  ac- 
tion is  partly  given  by  the  common 
law  and  partly  by  statute.  id 


LOAN. 
See  EVIDENCE,  4,  6. 

LOTTERIES. 

See  CRIMINAL  LAW,  6,  6. 
INDICTMENT,  1. 

M 

MANSLAUGHTER. 
See  INDICTMENT,  3. 

MARRIED  WOMAN. 
See  HUSBAND  AND  WIFE. 

MARSHALLING    OF   SECURITIES. 

The  equitable  doctrine  in  regard  to  mar- 
shalling securities  is  applicable  only 
where  one  party  has  a  lien  upon  or  in- 
terest in  two  funds,  with  a  right  to  re- 
sort to  either  or  both,and  another  party 
has  a  lien  upon  or  interest  in  only  one 
of  those  funds.  The  Farmers1  Loan 
and  Trust  Co.  v.  Walworth,  433 

MERGER. 
See  EXTINGUISHMENT. 


MISDEMEANOR. 
See  INDICTMENT,  2,  3,  4. 


MONET  HAD  AND  RECEIVED. 

1 .  The  defendant  imported  into  the  city 
of  New- York  goods  on  which  the  col- 
lector of  customs  exacted  and  received 
duties.     The  goods  were  by  law  en- 
titled to  a  drawback  of  the  duties  in 
case  they  were  exported  within  thre^ 
years.     The  defendant  sold  the  goods 
to  the  plaintiff  at  the  "  long  price," 
which  by  custom  and  agreement  in- 
cluded the  amount  of  duties  paid,  and 
carried  to  the  purchaser  the  right  to 
the  drawback.  Afterwards,  and  while 
the  plaintiff  yet  owned  the  goods  and 
could  export  them  so  as  to  get  the 
drawback,  or  could  sell  them  in  market 
at  the  "  long  price,"  the  secretary  of 
the  treasury  decided  that  goods  of  that 
kind  were  duty  free,  and  thereupon 
the  duties  were  refunded  to  the  im- 
porter.    In  consequence  of  such  deci- 
sion the  right  to  a  drawback  was  ex- 
tinguished, and  the  market  price  of  the 
articlo  was  immediately  reduced  by 
about  the  amount  of  duties  which  had 
been  exacted.     Held,  on  bill  filed  to 
recover  the  amount  of  duties  returned 
to  the  defendant,  there  being  no  fraud 
in  the  case,  and  no  warranty  that  the 
goods  were  dutiable,  and  no  allegation 
that  the  plaintiff  intended  to  export  the 
goods,  that  the  plaintiff  could  not  re- 
cover.   Moore  v.  Des  Arts,  359 

2.  Quere,  whether,  in  case  the  plaintiff 
had  a  right  to  recover  the  money,  the 
remedy  would  not  be  at  law.          id 

See  OFFICE  AND  OFFICEB,  3. 


MONEY  LENT. 
See  EVIDENCE,  4,  6. 

MONEY  PAID. 

See  BILLS  OF  EXCHANGE  AND  PKOMIS- 
SOBY  NOTES,  1. 

MORTGAGE. 

1.  Where  moneys  deposited  in  the  court 
of  chancery,  in  a  suit  for  the  partition 
of  lands,  have  been  invested  by  the 


INDEX. 


635 


clerk  upon  bond  and  mortgage  exe 
cuted  to  him  in  his  official  character 
such  clerk  has  no  power  to  dischargi 
the  mortgage  without  the  order  of  thi 
court.  The  Farmers'  Loan  and  Trus 
Co.  v.  Wcdworth,  433 

2.  And  it  seems,  that  where  the  clerk 
executes  such  a  discharge  without 
actual  payment,  and  without  the  or- 
der of  the  court,  it  is  void  even  as 
against  bona  fide  purchasers  of  the 
property  encumbered  by  the  mort- 
gage, id 

3.  But  the  unauthorized  act  of  the  clerk, 
in  executing  such  discharge,  may  be 
ratified  by  the  owners  of  the  fund  se 
cured  by  the  mortgage.  id 

4.  One  of  the  clerks  in  chancery  loaned 
upon  bond  and  mortgage  the  sum  o! 
$29,000,  which  had  been  paid  into 
that  court  to  secure  a  widow's  dower, 
in  pursuance  of  a  decree  in  partition. 
Afterwards,  the  borrowers  executed  to 
the  clerk  another  bond  for  the  same 
sum,  and  another  mortgage  upon  dif- 
ferent property.  These  securities  were 
intended  as  a  substitute  for  the  first 
bond  and  mortgage,  and  were  so  re- 
ceived by  the  clerk,  who,  thereupon, 
•without  any  direction  of  the  court,  ex- 
ecuted a  satisfaction  of  the  first  mort- 
gage, which  was  entered  of  record. 
The  owners  of  the  fund,  (after  the 
death  of  the  widow,)  with  notice  of  all 
the  circumstances,  foreclosed  the  sec- 
ond mortgage,  in  the  name  of  the  clerk, 
and  had  the  property  sold.    Held,  that 
although  the  discharge  of  the  first 
mortgage  was  void,  and  might  have 
been  treated  as  a  nullity,  yet  the  elec- 
tion of  the  owners  of  the  fund  to  pro- 
ceed upon  the  substituted  security,  was 
a  ratification  of  the  acts  of  the  clerk, 
and  therefore,  that  a  bill  filed  to  fore- 
close the  first  mortgage,  for  the  pur- 
pose of  collecting  the  residue  of  the 
money  not  realized  by  the  first  fore- 
closure, could  not  be  sustained.       id 

5.  It  seems,  that  if  the  owners  of  the 
fund  had  elected  to  proceed  upon  the 
first  mortgage,  the  appellants,  who 
were  bonafide  purchasers  of  the  prop- 
erty covered   thereby,  would    have 
been  entitled  to  the  second  mortgage 
for  their  indemnity.  id 

6.  Where  real  estate  is  incumbered  by 
two  mortgages,  and  the  holder  of  the 
junior  one  forecloses  aud  purchases  in 
the  property,  the  presumption  is  that 


he  bids  to  the  value  of  the  equity  of 
redemption  only;  and  the  land  be- 
comes from  thenceforth  the  primary 
fund  for  the  payment  of  the  debt  se- 
cured by  the  senior  mortgage.  Ma- 
thews  v.  Aikin,  595 

See  SUBROGATION,  3. 


MORTGAGE  OF  CHATTELS. 

1.  Where,  in  a  mortgage  of  personal  prop- 

erty, it  was  provided  that  the  mortga- 
gor should  permit  the  mortgagee  to 
"have,  possess,  occupy,  and  enjoy," 
the  mortgaged  property,  whenever  he 
should  demand  the  same,  and  after  the 
mortgagor  had  absconded,  the  mort- 
gagee took  possession  of  the  property 
by  virtue  of  the  mortgage ;  held,  that 
the  interest  of  the  mortgagor  was  not 
the  subject  of  levy  upon  execution,  al- 
though the  debt  secured  by  the  mort- 
gage had  not,  at  the  time  of  the  levy, 
become  due.  Mattison  v.  Baucus,  295 

2.  It  seems  that  the  interest  of  a  mortga- 
gor of  personal  property,  even  before 
forfeiture,  where  he  has  not  the  right 
of  possession  for  a  definite  period,  is 
but  a  right  of   redemption  merely, 
which  is  not  the  subject  of  levy  and 
sale  upon  execution.  id 

3.  It  seems,  that  a  personal  mortgage 
transfers  to  the  mortgagee  the  whole 
legal  title  to  the  thing  mortgaged, 
subject  only  to  be  defeated  by  the 
performance  of  the  condition.     Sutler 
v.  Miller,  496 

See  EXTINGUISHMENT. 
FRAUD,  8. 
PROPERTY. 


MOTION. 
See  PRACTICE,  3. 

MULTIFARIOUSNESS. 
See  PLEADINGS  IN  EQumr. 

N 

NON-IMPRISONMENT  ACT. 

.  The  assignment,  which  a  debtor,  pro- 
ceeded against  under  the  non-impris- 


636 


INDEX. 


onment  act,  executes  pursuant  to  the 
provisions  of  that  act,  (Stat.  1831,  §§ 
16,  17,)  is  for  the  benefit  of  the  credi- 
tor who  institutes  the  proceeding, 
and  not  of  the  creditors  generally. 
Spear  v.  Wardett,  144 

2.  And  a  voluntary    assignment,   exe- 
cuted by  such  debtor,  while  the  pro- 
ceeding is  pending  against  him,  of  all 
his  property  for  the  benefit  of  all  his 
creditors    without    preference,    is    a 
fraud  upon  the  act  and  the  rights  of 
the  prosecuting  creditor.  id 

3.  Where  a  judgment  creditor  instituted 
a  regular  and  valid  proceeding  under 
the  non-imprisonment  act,  and   the 
debtor,   while    the    proceeding  was 
pending,  executed  a  voluntary  assign- 
ment of  all  his  property  for  the  bene- 
fit of  his  creditors  generally  without 
preference,  so  that  no  property  passed 
into  the  hands  of  the  statutory  as- 
signee under  the  statutory  assignment 
subsequently  made ;  held,  upon  a  bill 
filed  by  the  creditor  against  the  debtor 
and  the  voluntary  assignee,  that  the 
voluntary  assignment  should  be  al- 
lowed   to  stand,   but    the    assignee 
should  bo  decreed  to  hold  the  proper- 
ty assigned,  as  a  trustee  for  such  cred- 
itor to  the  extent  of  his  demand,     id 

1.  Held,  also,  that  the  title  to  the  prop- 
erty having  passed  to  the  voluntary 
assignee,  the  statutory  assignee  had 
no  interest,  which  made  it  necessary 
to  join  him  as  a  party  to  the  bill,  id 


NOTICE. 
See  ANIMALS. 

NUISANCE. 

/.  In  the  common  law  action  by  writ  of 
nuisance,  as  retained  and  regulated  by 
the  revised  statutes,  it  seems  that  the 
declaration  must  show  that  the  plain- 
tiff has  a  freehold  estate  in  the  premi- 
ses affected  by  the  nuisance.  This  is  a 
real  action.  Corner  v.  Harris,  223 

2.  But  in  an  action  on  the  case  for  dam- 
ages merely,  sustained  in  consequence 
of  the  erection  of  a  nuisance,  it  is 
enough  that  the  plaintiff  is  in  posses- 
sion of  the  premises  affected  thereby. 

id 


3.  The  plaintiff  commenced  hia  action  by 
writ  of  nuisance  pursuant  to  the  stat- 
ute. (2  R.  S.  332.)  The  formal  com- 
mencement of  the  declaration  waa  ap- 
propriate to  that  action  and  referred 
to  the  writ ;  but  the  declaration  con- 
tained no  averment  that  the  plaintiff 
had  a  freehold  estate  in  the  premises 
affected  by  the  nuisance.  It  showed, 
however,  a  good  cause  of  action  on 
the  case,  and  concluded  thus,  "  to  the 
nuisance  of  said  dwelling  house  and 
premises  of  the  plaintiff  and  to  las 
damage  of  five  thousand  dollars:" 
held,  that  it  was  a  good  declaration 
in  an  action  on  the  case,  although  it 
showed  no  ground  of  recovery  in  the 
action  of  nuisance  proper ;  and  there- 
fore, that  the  supreme  court  was  right 
in  denying  a  motion  made  after  ver- 
dict in  arrest  of  the  judgment.  id 


o 


OFFICE  AND  OFFICER. 

1 .  The  policy  of  the  law  in  declaring  void 
bonds,  agrooments,  &c.,  taken  by  sher- 
iffs and  other  officers  colors  officii  not 
in  conformity  with  statute,  is  to  guard 
against  official  oppression  on  the  one 
side,  and  a  lax  performance  of  duty  to 
the  injury  of  the  plaintiff  in  the  process 
on  the  other.     Winter  v.  Kinney,  365 

2.  An  agreement  made  with  a  sheriff  by 
which  a  party  under  arrest  is  permit- 
ted to  go  at  large  upon  any  terms 
other  than  those  proscribed  by  statute 
is  void.     And  so  is  any  agreement 
taken  from  a  party  in  custody  intend- 
ed as  an  indemnity  to  the  sheriff  for  a 
breach  of  duty.  id 

3.  But  the  prohibition  extends  only  to  the 
officer,  and  not  to  the  plaintiff  in  the 
process.  Therefore,  where  a  party  un- 
der arrest  was  permitted  to  go  at  large, 
upon  depositing  witli  a  third  person 
the  sum  of  money  for  which  he  was 
arrested,  under  an  agreement,  that  if 
he  did  not  surrender  himself  at  a  given 
time,  the  money  might  bo  paid  over 
to  the  plaintiff  in  the  process ;  held,  in 
an  action  to  recover  back  the  money 
from  the  person  with  whom  it  was  do- 
posited,  that  the  question  was,  wheth- 
er the  agreement  was  made  with  the 
officer,  or  with  the  plaintiff  at  whoso 
suit  the  arrest  was  made ;  and  upon 
the  evidence,  that  question  directed 
to  be  submitted  to  the  jury.  id 


INDEX. 


4.  The  act  of  a  public  officer  exceeding 
the  authority  conferred  on  him  by  law 
may  be  adopted  by  the  party  for 
whose  benefit  it  is  done.  Per  BRON- 
SON,  J.  The  Farmers'  Loan  and  Thrust 
Co.  v.  Walworth,  433 

See  BANKRUPTCY,  7. 
COSTS,  2. 
JURISDICTION,  1. 
MORTGAGE,  1,  2,  3,  4. 
POSTMASTER. 


ORDER. 
See  APPEAL,  8. 


PAROL  EVIDENCE. 

1.  In  the  construction  of  deeds  and  other 
instruments,  the  intention  of  the  par- 
ties is  to  govern ;  and  where  the  lan- 
guage used  is  susceptible  of  more  than 
one  interpretation,  courts  will  look  at 
the  surrounding  circumstances  exist- 
ing when  the  contract  is  entered  into, 
such  as  the  situation  of  parties  and  of 
the  subject  matter  of  the  contract. 
French  v.  Carhart,  96 

2.  In  the  action  upon  the  covenant  of 
seisin,  for  the  purpose  of  ascertaining 
the  measure  of  damages,  the  true  con- 
sideration, and  the  fact  that  only  part 
of  it  has  been  paid,  may  be  shown  by 
parol ;  although  the  deed  expresses  a 
different  consideration,  and  acknow- 
ledges that  the  whole  of  it  has  been 
paid ;  and  there  is  therefore  no  occa- 
sion, in  such  a  case,  to  resort  to  a 
court  of  equity  for  relief.   Bingham  v. 
Weider  wax,  509 

See  CONTRACT,  1,  2. 


PARTIES  TO  ACTIONS. 

1 .  A  person,  who  is  charged  with  fraud- 
ulently procuring  the  execution  of  a 
will  in  favor  of  an  infant,  is  a  proper 
party  to  a  bill  filed  for  the  purpose  of 
setting  aside  such  will,  although  he  has 
no  interest.    He  may  be  charged  with 
the  costs.     Brady  \.  Me  Coster,      2 14 

2.  The  party  who  stakes  a  sum  of  money 
on  an  illegal  wager,  may  recover  so 


much  thereof  as  belongs  to  himselt 
without  joining  in  the  action  other  per- 
sons who  contributed  specific  portions 
of  the  fund.  Ruckman  v.  Pitcher^  392 

See  INSURANCE,  4. 

NON-IMPRISONMENT  ACT,  4. 


PARTITION. 
See  PLEADINGS  IN  EQUITY. 

PAYMENT. 
See  EVIDENCE,  4,  5. 

PENALTIES  AND  FORFEITURES. 

See  LIMITATION  OF  ACTIONS. 
WITNESS,  2,  3. 

PLEADINGS. 

The  form  of  an  action  is  dotormincd  by 
the  matter  set  forth  in  the  declaration, 
and  not  by  the  name  which  the  plain- 
tiff may  give  it.  If,  therefore,  the 
pleader,  in  the  commencement  of  a 
declaration,  gives  the  action  a  wrong 
name,  it  will  do  no  harm.  Comes  v. 
Harris,  223 

See  BANKRUPTCY,  5. 
NUISANCE. 

PLEADINGS  IN  EQUITY. 

The  complainant  claimed  half  of  the 
estate  by  inheritance  from  his  father, 
and  the  other  half  by  inheritance  from 
his  brother,  and  alleged  that  the  will 
of  his  brother  was  void  for  fraud,  &c. ; 
but  in  case  the  will  should  be  adjudged 
valid,  then  he  still  claimed  one-half  of 
the  estate,  and  insisted  that  he  was 
entitled  to  a  partition ;  and  the  prayer 
of  the  bill  was,  that  the  will  might  be 
declared  void,  or  that  a  partition  might 
be  had ;  held,  that  the  bill  did  not 
make  a  case  of  partition,  and  therefore 
that  it  was  not  liable  to  objection  for 
nmltifariousness.  Brady  v.  Me  Cos- 
ker,  214 

See  CHANCERY. 

JURISDICTION  OF  CHANCERY,  5. 


638 


INDEX. 


PLEDGE. 

1.  The  judgment  of  the  supreme  court, 
determining  that  a  sheriff  holding  an 
execution    against    a  pledgor,   may 
by  virtue  thereof  take  the  property 
pledged   out    of   the   hands  of   the 
pledgee  into  his  own  possession,  and 
sell  the    right    and  interest  of  the 
pledgor  therein,  affirmed,  the  judges 
being  equally  divided  upon  the  ques- 
tion.    Stiefv.Hart,  20 

2.  After  a  sale  by  the  officer  in  such  a 
case,  the  pledgee  is  entitled  to  the 
possession  of  the   property  until  the 
purchaser  redeems  it  from  the  pledge. 

id 


POLICY. 
See  INSURANCB. 

POSTMASTER. 
A  postmaster  who  assumes  to  charge  let- 


ter postage  on  a  newspaper  in  conse- 
quence of  an  initial  boing  on  the  wrap-  2. 

per,  does  not  act  judicially  in  such  a 
sense  as  to  protect  him  from  an  action 
for  improperly  detaining  such  news- 
paper, although  no  fraud  or  malice  be 
alleged  or  proved.  Teatt  v.  Felton, 

537 


POWER. 

1.  A  testator,  by  his  last  will  and  testa- 
ment, appointed  three  persons  his  ex- 
ecutors, and  authorized  them,  or  the 
survivor  of  them,  to  sell  and  convey 
any  part  of  his  real  estate,  "  in  case 
they  should  find  it  proper  or  most  fit  in 
their  opinion,"  to  sell  the  same  for  the 
purpose  of  paying  his  debts.     Two  of 
the  executors  neglected   to  qualify, 
and  never  acted  as  such.     The  other 
executor  duly  qualified,  and  took  out 
letters  testamentary  in  his  own  name 
only,  and  subsequently  sold  and  con- 
veyed a  portion  of  the  testator's  real 
estate  for  the  purpose  specified  in  the 
will;  held,  that  the  power  contained  in 
the  will  was  well  executed,  and  that 
the  conveyance  was  valid.     Taylor  v. 
Morri»,     '  341 

2.  It  seems,  that  the   statute,  (2  P.  S. 
109,  sj  55.)  which  provides,  that,  whore , 
real  estate  is  devised  to  executors  to  be  I 


sold  by  them,  or  is  ordered  by  any  last 
will  to  be  sold  by  them,  and  any  of  the 
executors  neglect  or  refuse  to  qualify 
and  act  as  such,  the  sale  may  be  made 
by  the  executor  or  executors  who  take 
upon  themselves  the  execution  of  the 
will,  applies  as  well  to  discretionary 
as  to  peremptory  powers  of  sale,  id 


POWER  AND  AUTHORITY. 

See  JURISDICTION,  3,  4,  6. 

SALE  FOR  TAXES  AND  ASSESSMENTS. 
STATUTES. 


PRACTICE. 

It  is  irregular  to  serve  an  assignment 
of  errors  before  one  has  been  filed ; 
and  where  the  assignment  was  not 
filed  until  the  next  day  after  it  was 
served,  the  rule  to  join  in  error  and 
all  subsequent  proceedings  set  aside. 
Lyme  v.  Ward,  531 


Where  the  judgment  of  the  court  be- 
low is  reversed  by  default  in  not  join- 
ing in  error,  the  remittitnr  should  not 
be  sent  to  the  court  below  until  ten 
days  have  elapsed.  id 

Motion  papers  should  be  entitled  in 
this  court,  notwithstanding  §  274  of 
the  code  declaring  that  "  the  title  of 
the  action  shall  not  be  changed  in 
consequence  of  an  appeal."  Papers 
not  so  entitled  cannot  be  read.  Click- 
man  v.  Clickman,  611 

See  APPEAL. 
ATTORNEY. 
COSTS. 
DEFAULT. 

JURISDICTION,  1,  2. 
REHEARING. 
SPECIAL  VERDICT. 


PRESUMPTION. 
See  EVIDENCE,  4,  6. 

PRIMARY  FUND. 
See  MORTGAGE,  6. 


INDEX. 


639 


PRINCIPAL  AND  AGENT. 

See  AGENT. 

INSURANCE,  1,  2. 
MORTGAGE,  3,  4. 
OFFICE  AND  OFFICER,  4. 


PRIORITY. 

See  ASSIGNMENT. 

NON-IMPRISONMENT  ACT. 


PRIVILEGE  OP  WITNESS. 
See  WITNESS. 

PROCESS. 
See  JURISDICTION,  3,  4,  5. 


PROOF  AND  ACKNOWLEDGMENT 
OF  WRITTEN  INSTRUMENTS. 

See  EVIDENCE,  1,  2. 


PROPERTY. 

Where  A.  occupied  land  under  H.,  and 
by  the  terms  of  their  agreement  the 
grass  belonged  to  A. ;  held,  that  A. 
might  transfer  such  grass,  while  yet 
growing,  by  a  personal  mortgage. 
Jencks  v.  Smith,  90 

See  FIXTURES. 


PROTEST  AND  NOTICE. 

See  BILLS  OF  EXCHANGE  AND  PROMIS- 
SORY NOTES,  7,  8,  9,  10,  13, 14, 15, 16, 17. 


R 

RACING. 
See  BETTING  AND  GAMING^  3. 

RATIFICATION. 

See  AGENT. 

MORTGAGE,  3,  4. 
OFFICE  AND  OFFICER,  4. 


RECOUPMENT. 
See  FRAUD,  5. 


REHEARING. 

A  party  complaining  of  any  order  made 
at  a  special  term  has  a  rigid  to  have 
the  matter  reheard  and  passed  upon 
by  the  supreme  court,  at  a  general 
term.  Grade  v.  Freeland,  228 


REMAINDER. 
See  ESTATES  TAIL. 

REMITTITUR. 

See  JURISDICTION,  1,  2. 
PRACTICE,  2. 

REPLEVIN. 

1.  After  a  sheriff  had  levied  upon  prop- 
erty which  belonged  to  the  defendant 
in    the    execution,    another    person 
brought  replevin,  and  had  the  same 
property  delivered  to  him  upon  the 
writ,  and  died  pending  the  action; 
held,  that  the  sheriff  might  retake  the 
property  and  sell  it  to  satisfy  the  exe- 
cution.    Burlde  v.  Luce,  163 

2.  On  the  death  of  a  plaintiff  in  replevin 
the  action  abates  and  cannot  be  re- 
vived by  scire  facias.  id 

3.  In  such  a  case  the  defendant  has  no 
remedy  upon  the  replevin  bond.      id 

RESCISSION  OF  CONTRACT. 
See  FRAUD,  4,  5. 

RESERVATION. 
See  DEED,  3,  4,  5,  6,  7. 

RES  JUDICATA. 
f 

See  INDICTMENT,  4. 


REVIVOR  AND  SUPPLEMENT, 
BILL  OF. 

See  CHANCERY. 


640 


INDEX. 


SALES. 
See  FRAUDS,  STATUTE  OF. 


SALE   FOR  TAXES  AND  ASSESS- 
MENTS. 

I .  Where  three  persons  were  authorized 
to  estimate  the  expense  of  a  public 
improvement  in  the  city  of  New- York, 
and  to  assess  the  same  upon  the  own- 
ers and  occupants  benefited,  and  one 
of  the  three  persons  was  not  consulted 
and  did  not  act  in  making  such  esti- 
mate and  assessment ;  held,  that  the 
proceeding  was  void,  and  that  no  title 
could  be  deduced  through  a  sale  made 
for  the  non-payment  of  such  assess- 
ment. Doughty  v.  Hope,  79 

'2.  Where  an  assessment  is  signed  by 
two  of  the  persons  so  authorized,  it 
seems  the  legal  presumption  is,  that 
the  third  was  present  and  acted  in  the 
business ;  but  it  may  nevertheless  be 
shown  that  ho  was  not  consulted  and 
did  not  act.  id 

3.  One  of  the  assessors  who  signed  the 
certificate  is  a  competent  witness  to 
prove  that  the  third  assessor  was  not 
consulted.  id 

4.  The  ratification  by  the  common  coun- 
cil of  the  city  of  New-York,  of  a  void 
assessment,  does  not  aid  the  proceed- 
ing.    To  make  out  a  title  there  must 
be  a  valid  assessment  duly  ratified,   id 

'>.  The  publication  of  the  redemption  no- 
tice required  by  Slat.  1816,^.  114,  §2, 
as  amended  by  Slat.  1840,  .p.  274,  jj  10, 
after  a  sale  for  a  tax  or  assessment, 
must  be  fully  completed  before  the 
commencement  of  the  last  six  months 
of  the  two  years  succeeding  the  sale, 
and  an  omission  in  this  respect  will 
invalidate  the  purchaser's  title.  id 

6.  Where  the  redemption  notice  is  not 
published  according  to  law,  a  regular 
notice  served  after  the  execution  of 
the  lease  given  upon  the  sale,  pursuant 
to  Stal.  1841,;).  211,  §3,  and  the  cer- 
tificate by  the  street  commissioner,  re- 
quired by  $  7  of  the  same  act,  do  not 


confirm  the  title. 


id 


1.  The  statute  which  declares  that  the 
lease  given  upon  a  sale  for  taxes  or 


assessments  in  the  city  of  New-York 
"  shall  be  conclusive  evidence  that 
the  sale  was  regular,"  Ac.  (Slat.  1816, 
p.  115,  §  2,)  refers  only  to  the  notice  of 
sale,  and  the  proceedings  at  the  auc- 
tion, id 


SCIENTEB. 
See  ANIMALS. 

SCIRE  FACIAS. 
See  ABATEMENT. 

SEISIN. 

See  COVENANT. 
ESTATES  TAIL,  3. 

SHERIFF. 

See  INDEMNITY,  4. 

OFFICE  AND  OFFICER,  1,  2,  3. 

SLANDER. 

In  an  action  for  slander  it  is  not  compe- 
tent for  the  plaintiff  to  introduce  evi- 
dence of  his  good  character  in  reply  to 
evidence  introduced  by  the  defendant 
tending  to  prove  the  truth  of  the 
charge.  Houghtaling  v.  Kilderhouse, 

530 


SPECIAL  VERDICT. 

1.  A  special  verdict  should  state  facts 
and  not  merely  the  evidence  of  facts, 
so  as  to  refer  to  the  court  only  the 
consideration  of  questions  of  law.  Hill 
v.  Covdl,  522 

2.  To  authorize  a  judgment  for  the  plain- 
tiff upon  a  special  verdict  in  an  action 
of  trover,  the  verdict  should   either 
find  a  conversion  of  the  propeity,  or 
state  such  facts  as  to  leave  the  ques- 
tion of  conversion  one  of  law  merely. 

id 

A  demand  and  refusal  are  only 
evidence  of  conversion,  and  may  be 
repelled  by  proof  showing  that  a  com- 
pliance with  the  demand  was  impos- 
sible, id 


INDEX. 


4.  Therefore,  where  in  trover  the  special 
verdict  stated  a  demand  and  refusal, 
but  did  not  show  that  the  property 
was  in  the  possession  of  the  defendants 
at  the  tune  of  such  demand,  there 
being  also  other  evidence  stated  in  the 
verdict  tending  to  show  that  the  prop- 
erty was  not  then  in  their  possession ; 
held,  not  sufficient  to  entitle  the  plain- 
tiff to  judgment  on  the  verdict,        id 

5.  And  although  the  special  verdict  also 
found  that  the  defendants  had  sold  the 
property,  yet  it  appearing  that  they  had 
authority  to  sell  it  on  account  of  the 
plaintiff,  and  the  fact  not  being  nega- 
tived that  the  sale  was  for  the  purpose 
and  in  the  manner  authorized;  fold, 
that  the  court  could  not  adjudge  that 
there  had  been  a  conversion.  id 


STAKEHOLDER. 


See  BETTING  AND  GAMING,  1. 


STATUTES. 

1.  Whenever  a  power  is  given  by  statute, 
every  thing  necessary  to  make  it  ef- 
fectual, or  requisite  to  attain  the  end 
in  view,  is  implied.    Per  JEWETT,  C. 
J.     Stiefv.Hart,  20 

2.  So  when  the  law  commands  a  thing 
to  be  done,  it  impliedly  authorizes  the 
performance  of  all  acts  necessary  to 
the  execution  of  the  command.     Per 
JEWETT,  C.  J.  id 

3.  Where  property  is  taken  under  a  stat- 
ute authority,  without  the  consent  of 
the  owner,  the  power  must  be  strictly 
followed ;  and  if  any  material  link  is 
wanting,  the  whole  proceeding  is  void. 
Doughty  v.  Hope,  79 

See  CONSTITUTIONAL  LAW. 
EVIDENCE,  7. 
LIMITATION  OP  ACTIONS. 
NON-IMPRISONMENT  ACT. 
SALE  FOR  TAXES  AND  ASSESSMENTS. 


STATUTE  OP  FRAUDS. 
See  FRAUDS,  STATUTE  OF. 


STATUTE  OP  LIMITATIONS. 
See  LIMITATION  OP  ACTIONS. 


STOCKHOLDER. 

See  CORPORATIONS,  1. 

LIMITATION  OP  ACTIONS,  1,  2. 


SUBROGATION. 

1.  One  who  pays  a  debt  for  which  he  is 
not  personally  bound,  and  which  is  not 
a  charge  upon  his  property,  is  not  en- 
titled to  be  subrogated  to  a  lien  which 
the  creditor  had  upon  the  estate  of  the 
debtor.     Wilkes  v.  Harper,  586 

2.  The  right  of  a  surety  to  be  subrogated, 
on  payment  of  the  debt,  to  the  securi- 
ties held  by  the  creditor,  does  not  de- 
pend upon  contract,  but  rests  upon 
principles  of  justice  and  equity.    Ma- 
thews  v.  Aikin,  595 

3.  A.  owed  a  debt  to  B.,  who  was  indebt- 
ed to  C.    At  the  request  of  B.  and  m 
pursuance  of  an  arrangement  between 
B.  and  C.,  A.  executed  a  bond  and 
mortgage  for  the  amount  of  his  debt, 
directly  to  C.     The  complainant  D., 
on  the  solicitation  of  B.,  but  without 
any  request  from  the  mortgagor,  guar- 
antied the  payment  of  the  bond.     The 
holder  of  the  bond  and  mortgage,  who 
had  also  become  the  owner  of  the  equi- 
ty of  redemption  under  a  junior  mort- 
gage, sued  D.  upon  his  guaranty  and 
compelled  him  to  pay  the  debt.    Held, 
on  bill  filed  by  D.,  that  he  was  entitled 
by  substitution  to  the  benefit  of  the 
mortgage  for  his  indemnity,  id 

See  ASSIGNMENT. 
EXECUTOR,  3. 


SUBSCRIPTION. 
See  CONTRACT,  3,  4,  5. 

SUMMARY  PROCEEDINGS. 
See  LANDLORD  AND  TENANT,  4. 

SUPPLEMENTAL  BILL. 
See  CHANCERY. 


INDEX. 


SURETY. 


See  JURISDICTION  OF  CHANCERY,  7. 
LEGACY  AND  LEGATEE,  6. 
SUBROGATION. 
USURY. 


SURROGATE. 
See  EXECUTORS,  1. 

T 

TRESPASS. 
See  ANIMALS. 

TRIAL. 

1.  A  request  for  instruction  to  a  jury 
should  rest  upon  undisputed  facts  or  a 
hypothetical  case ;  and  if  the  proposi- 
tion which  the  party  submits  be  not 
right  in  all  its  parts,  both  as  to  fact  and 
law,  the  judge  may  refuse  to  give  the 
instruction  asked  for,  and  need  not 
qualify  such  rerusai  oy  pointing  out 
the  good  and  the  bad  parts  of  the  prop- 
osition.    Doughty  v.  Hope,  79 

2.  Where  a  witness  objected  to  testifying 
on  the  ground  that  his  testimony  might 
subject  him  to  an  indictment,  or  pros- 
ecution for  a  penalty,  it  is  not,  in  a 
court  of  review,  an  answer  to  the  claim 
of  privilege,  that  the  statute  of  limita- 
tions has  run  against  the  offence,  un- 
less it  appear  that  such  answer  was 
suggested  on  the  trial.    Per  BRONSON, 
J.    Pierce  v.  Bank  of  Salina,  83 

3.  Where  upon  a  trial  there  is  opportu- 
nity for  objection,  and  the  party  whose 
duty  it  is  to  object,  remains  silent,  all 
reasonable  intendments  will  bo  made, 
in  a  court  of  review,  to  uphold  the 
judgment.     Jencks  v.  Smith,  90 

See  BILL  OF  EXCEPTIONS. 

COURT  OF  A  JUSTICE  OF  THE  PEACE. 

ERROR. 

EVIDENCE,  9,  10. 

JUROR. 


TROVER. 

1.  A  demand  and  refusal  are  only  evi- 
dence of  conversion,  and  may  be  re- 


pelled by  proof  showing  that  a  compli- 
ance with  the  demand  was  impossible. 
Hill  v.  Covell,  522 

2.  Therefore,  where  in  trover  the  special 
verdict  stated  a  demand  and  refusal, 
but  did  not  show  that  the  property  was 
in  the  possession  of  the  defendants  at 
the  tune  of  such  demand,  there  being 
also  other  evidence  stated  in  the  ver- 
dict tending  to  show  that  the  property 
was  not  then  in  their  possession ;  held, 
not  sufficient  to  entitle  the  plaintiff  to 
judgment  on  the  verdict  id 

See  JURISDICTION,  7. 

SPECIAL  VERDICT,  1,  2,  6. 


TRUST. 
See  EXECUTORS,  1,  2. 

u 

UNDERTAKING. 
See  APPEAL,  15,  16,  23,  24. 

UNITED   STATES,  PRIORITY   OP. 
See  ASSIGNMENT. 

USURY. 

1.  Per  BRONSON,  J.  and  JEWETT,  C.  J.,  an 
agreement  made  by  a  creditor  with  the 
principal  debtor,  to  forbear  the  pay- 
ment of  the  debt  in  consideration  of  a 
usurious  premium  paid  for  such  for- 
bearance, is  void,  and  therefore  cannot 
operate  to  discharge  the  sureties.     Vi- 
las  v.  Jones,  274 

2.  Whether  a  mere  surety  is  a  borrower, 
within  the  moaning  of  the  usury  act  of 
1837,  (Laws 0/1837,^.487,  §  4,)  quere. 

id 

See  JURISDICTION  OF  CHANCERY,  6,  7. 
WITNESS,  1,  2. 


VERDICT. 

See  SPECIAL  VERDICT. 


INDEX. 


648 


1 OLUNTARY  PAYMENT. 
Set  SUBROGATION,  1. 

W 

WAGER. 
See  BETTING  AND  GAMING. 

WAIVER. 

See  BILL  OF  EXCEPTIONS. 

COURT  OF  A  JUSTICE  OF  THE  PEACE. 
ERROR,  2. 
EVIDENCE,  9,  10. 
FRAUD,  4,  5. 

WARRANT. 
See  JURISDICTION,  3,  4,  5. 

WILL. 

1.  Where,  by  a  will  made  prior  to  the  re- 
vised statutes,lands  are  devised  in  gen? 
eral  terms  without  words  of  limitation 
or  inheritance,  the  devisee  takes  a  life 
estate  only.     Harvey  v.  Olmsted,   483 

2.  And  such  introductory  words  as  these : 
"I  order  and  direct  my  real  and  per- 
sonal estate  to  be  divided  and  distri- 
buted as  follows,"  do  not  enlarge  the 
devise  into  a  fee.  id 

3.  A  charge,  to  carry  a  fee  by  implica- 
tion,  where  the    devise  is  without 
words  of  limitation,  must  be  upon  the 
person  of  <7r  devisee  in  respect  to  the 
lands  devised.    Where  this  exists,  it 
gives  to  the  devise  the  character  of 
a  purchase.  id 

4.  A  testator,  by  his  will  made  in  1821, 
gave  a  part  of  his  real  estate  to  his  wife 
during  her  widowhood,  and  after  her 
decease  to  two  of  his  children.   To  his 
son  Nathaniel  he  gave  two  parcels,  one 
designated  in  the  will  as  the  Powers 
lot,  the  other  as  the  mountain  lot.     To 
another  son  he  gave  a  legacy  of  $1000 
to  be  paid  out  of  his  personal  estate, 
if  sufficient  after  paying  debts  and 
other  legaeies,but  if  not  sufficient,  then 


to  be  paid  in  land  "  from  the  Powers 
lot,  so  called."  There  were  no  words 
of  inheritance  in  any  part  of  the  wilL 
Introductory  to  all  the  devises  and  be- 
quests were  these  words :  "  I  order  and 
direct  my  real  and  personal  estate  to  be 
divided  and  distributed  as  follows." 
In  the  concluding  part  the  testator 
declared,  that  in  case  any  dispute 
should  arise  upon  the  will,  the  same 
should  be  referred  to  three  men,  to 
be  chosen  for  that  purpose,  who  should 
"  declare  their  sense  of  the  testator's 
intentions,  unfettered  by  law  and  the 
niceties  of  legal  construction."  Held, 
that  Nathaniel  took  only  a  life  estate 
in  the  mountain  lot.  id 


See  EXECUTORS,  1,  2. 

JURISDICTION  OF  CHANCERY,  1,  2, 

3,  4,  5. 

LEGACY  AND  LEGATEE,  1,  2,  3,  4,  5. 
POWER. 


WITNESS. 


1.  A  plaintiff  on  tKo  rooorcl,  or  plaintiff  in 

interest,  when  called  upon  to  testify 
under  the  usury  act  of  1837,  cannot 
be  compelled  to  disclose  facts  tending 
to  show  that  the  promissory  note,  to 
recover  which  the  suit  is  brought,  was 
discounted  by  him  in  violation  of  the 
statute  (1  R  S.  595,  §  28)  concerning 
the  discounting  of  notes,  &c.,  by  offi- 
cers and  agents  of  banking  corpora- 
tions. Pierce  v.  Bank  of  Salina,  83 

.  A  note  discounted  by  the  teller  of  a 
bank,  for  his  own  benefit,  in  violation 
of  the  statute  above  cited,  is  void;  and 
where  the  note  alleged  to  have  been  so 
discounted  was  in  suit  for  his  benefit, 
and  in  opening  the  defence  to  the  jury. 
this  was  stated  as  one  ground  of  de- 
fence, and  usury  as  another  ground, 
such  teller,  although  ostensibly  called 
as  a  witness  to  prove  the  usury,  can- 
not be  required  to  disclose  the  trans- 
action for  the  reason  that  his  testimony 
might  subject  him  to  a  loss  of  the  note 
upon  a  ground  distinct  from  the  de- 
fence of  usury.  id 

,  A  witness,  or  party  called  as  a  wit- 
ness, may  not  only  object  to  testifying 
to  the  main  fact  which  would  subject 
him  to  a  penalty  or  forfeiture,  but  may 
also  refuse  to  disclose  anv  one  of  a 


644 


INDEX. 


series  of  facts  which  together  would 
expose  him  to  such  penalty  or  forfeit- 
ure, id 

4.  A  witness  is  privileged  from  answer- 
big  a  question  when  the  answer  would 
tend  to  disgrace  him,  unless  the  evi- 
dence would  bear  directly  upon  the 


issue ;  and  therefore,  where  the  answer 
could  have  no  effect  upon  tlie  case 
except  as  it  might  impair  the  credibil- 
ity of  the  witness,  field,  that  he  was 
privileged.  Lehman  v.  The  People, 

380 

See  EVIDENCE,  6. 


END  OP  VOLUME  ONE. 


